Digest of Judgements
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kushalex936Digest of Judgements
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kushalex936United Nations
Environment Programme
UNEP/UNDP/Dutch Government Joint Project
United Nations
on Environmental Law Development Programme
United Nations
and Institutions in Africa
Environment Programme
COMPENDIUM
of Judicial Decisions
on Matters
Related to Environment
National Decisions
Volume I
UNEP/UNDP/Dutch Government Joint Project on
Environmental Law and Institutions in Africa
Tel: (254-2) 623815/623923/623853
Fax: (254-2) 623859
ISBN: 92-807-1762-6
United Nations
Development Programme
COMPENDIUM OF JUDICIAL DECISIONS IN
MATTERS RELATED TO ENVIRONMENT
NATIONAL DECISIONS
Volume I
December 1998
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
ISBN 92-807-1762-6
ii
BACKGROUND
TABLE OF CONTENTS
VOLUME I
i. Introduction .......................................................................................................................................................vii
ii. Background to Environmental Litigation .......................................................................................................... ix
iii. Overview and Analysis of Judicial Decisions in English................................................................................xix
PART 1:
DECISIONS IN ENGLISH
SECTION I: LOCUS STANDI
1. Sierra Club v. Morton 92 S.Ct. 1361 (1972) (USA)........................................................................................ 3
2. Von Moltke v. Costa Areosa (Pty) Ltd 1975 (1) [C.P.D.] 255 (South Africa) .............................................. 12
3. Wangari Maathai v. Kenya Times Media Trust HCCC No 5403 1989 (Kenya)......................................... 15
4. Wangari Maathai v. City Council of Nairobi HCCC No 72 of 1994 (Kenya) ............................................ 19
5. Oposa v. Factoran G.R. No 101083, July 30 1993 (Philippines) ................................................................... 22
6. M. Farooque v. Bangladesh, Civil appeal No 24 of 1995, 17 BLD (AD) 1997,
Vol. XVII, pg 1 to 33; 1 BLC (AD) (1996), pg 189 219, 1996 (Bangladesh) ................................................. 37
7. Kajing Tubek v Ekran Bhd & Others [1996] 2 Malayan Law Journal (Malaysia) ..................................... 46
8. Van Huyssteen & Others v. Minister of Environmental Affairs & Tourism & Others
1996 (1) SA 283 (C) (South Africa) ................................................................................................................. 59
9. Maina Kamanda v. Nairobi City Council HCCC No 6153 of 1992 (Kenya) .............................................. 78
10. Verstappen v Port Edward Town Board & Others 1994 (3) SA 569 (South Africa) ................................. 81
11. Festo Balegele and 749 others v. Dar es Salaam City Council Misc. Civil Cause
No 90 of 1991 (Tanzania) ................................................................................................................................. 87
12. Wildlife Society of Southern Africa & Others v. Minister of
Environmental Affairs & Tourism & Others Case No 1672/1995 (South Africa)...................................... 91
13. Minister of Health & Welfare v. Woodcarb (Pty) Ltd & Another
1996 (3) SA 155 (South Africa)...................................................................................................................... 102
SECTION 2: ENVIRONMENTAL IMPACT ASSESSMENT
14. Calvert Cliffs’ Coordinating Committee, Inc. v. United States Atomic Energy Commission
449 F 2d 1109 (1971) (USA)......................................................................................................................... 111
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
15. Sierra Club v. Coleman XIV/6 ILM 1425 (USA) ........................................................................................ 126
16. Sierra Club v. Coleman XV/6 ILM 1417 (USA) ......................................................................................... 129
17. Scenic Hudson Preservation Conference v. Federal Power Commission
354 F.2d 608 (1965) (USA). ........................................................................................................................... 136
18. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defence Council
435 US 519, 98 S. Ct. 1197 ............................................................................................................................ 147
SECTION 3: CHOICE OF FORUM
19. Charan Lal Sahu v. Union of India AIR 1990 Supreme Court 1480
(Bhopal Gas Disaster) (India) ......................................................................................................................... 167
20. Union Carbide Corporation v. Union of India and Others AIR 1990 Supreme Court 273 ..................... 227
21. Englebert Ngcobo & Others v. Thor Chemicals Holdings Ltd & Others
No 1994 N 1212 (UK) (the Thor Chemicals case)......................................................................................... 237
SECTION 4: PUBLIC TRUST DOCTRINE
22. M.C. Mehta v. Kamal Nath & Others (1977) 1 SCC 388 (India) .............................................................. 259
23. Rural Litigation and Entitlement Kendra Dehradun and Others, Petitions v.
State of U.P. and Others, Respondents ........................................................................................................ 275
24. In re: Human Rights Case (Environment Pollution in Balochistan)
P L D 1994 Supreme Court 102 (Pakistan) .................................................................................................... 280
25. General Secretary West Pakistan Salt Miners Labour Union v. The Director of
Industries and Mineral Development, Punjab, Lahore 1994 S C M R 2061 (Pakistan) ......................... 282
26. Niaz Mohammed Jan Mohammed v. Commissioner of Lands & Others
HCCC No 423 of 1996 (Kenya) ..................................................................................................................... 290
27. Abdikadir Sheikh Hassan v. Kenya Wildlife Service HCCC No 2059 of 1996 (Kenya).......................... 295
28. Commissioner of Lands v. Coastal Aquaculture Ltd Civil Appeal No 252 of 1996 (Kenya) .................. 296
SECTION 5: PRECAUTIONARY PRINCIPLE
29. R v Secretary of State for Trade and Industry ex parte Duddridge Journal of
Environmental Law vol. 7 No 2, 224 (UK).................................................................................................. 311
30. Shehla Zia v WAPDA P L D 1994 Supreme Court 693 (Pakistan) .............................................................. 323
31. Greenpeace Australia Ltd v Redbank Power Company Pty Ltd & Singleton Council
(1995) 86 LGERA 143 (Australia) ................................................................................................................. 335
32. Nicholls v Director General of National Parks and Wildlife 1994 84 LGERA 397
(Australia)........................................................................................................................................................ 349
33. Leatch v National Parks & Wildlife Service and Shoalhaven City Council
(1993) 81 LGERA 270 (Australia) ................................................................................................................. 373
iv
BACKGROUND
CONTENTS
SECTION 6: POLLUTER PAYS PRINCIPLE/LIABILITY FOR ENVIRONMENTAL
DAMAGE
34. Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd 1990 (4) SA 749
(South Africa).................................................................................................................................................. 387
35. Indian Council for Enviro-Legal Action v Union of India & Others (1996) 3 SCC 212
(India) .............................................................................................................................................................. 394
SECTION 7: RIPARIAN RIGHT TO WATER
36. M.C. Mehta v Union of India AIR 1988 Supreme Court 1115 (India) ....................................................... 421
37. Nairobi Golf Hotels (Kenya) Ltd v Pelican Engineering and Construction Co. Ltd
HCCC No 706 of 1997 ................................................................................................................................... 432
PART 2: DECISIONS IN FRENCH
SUMMARIES OF DECISIONS FROM FRANCE AND CANADA...................................... 435
SECTION 8: FRENCH CASES
38. COUR DE CASSATION (civ.2) 3 Avril 1978 (1) . Société Montedison contre Préfet du
département de la Haute Corse et autres. .................................................................................................... 453
39. TRIBUNAL ADMINISTRATIF de TOULOUSE, 24 janvier 1980 Association pour la
défense de la population Concernée par la création de la Zone de Naujac, La Primaube, Luc .................. 453
40. TRIBUNAL ADMINISTRATIF DE TOULOUSE, 22 mai 1980 Commune de Launaguet ....................... 455
41. CONSEIL D’ETAT, 18 juin 1980, Comité départemental de protection de la nature en
Saône-et-Loire (Req. no. 17 605) ................................................................................................................. 456
42. COUR D’APPEL DE LYON, 22 juin 1983, Cravero .................................................................................. 456
43. TRIBUNAL ADMINISTRATIF DE POITIERS, 25 octobre 1985 Association ‘Ecole 79’,
MM. Courtin, rapp., de Sevin, c. du g. ......................................................................................................... 458
44. TRIBUNAL ADMINISTRATIF RENNES, 7 novembre 1985 Commissaire de la République
des Côtes-du-Nord (Reg. n° s 85-224)........................................................................................................... 458
45. TRIBUNAL ADMINISTRATIF LIMOGES, 15 Janvier 1986: Association contre la pollution de
la haute vallée de la Gartempe c/ Ministre de l’environnement (Req. n°s 83-420 et 83-421).................... 459
46. CONSEIL D’ÉTAT, 17 janvier 1986 : Société Tioxide c/ Association de défense des marins;
pêcheurs de Grand-Fort-Philippe (Req. no. 05-863).................................................................................... 461
47. CONSEIL D’ÉTAT, 7 mars 1986,:Ministre de l’Industrie c/ Cogema et Flepna
(Req. n° 49-644) [1]...................................................................................................................................... 462
48. CONSEIL D’ÉTAT, 11 Avril 1986, Ministre de l’Environnement c/ Société des Produits
Chimiques Ugine-Kuhlman (Req. no. 62-234) ............................................................................................ 463
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
49. CONSEIL D’ÉTAT, Section 18 Avril 1986 Société « Les mines de potasse d’Alsace »
c/province de la Hollande Septentrionale et autres ...................................................................................... 464
50. COUR DE CASSATION (Ch. crim.), 23 mai 1986 Société des Sciences naturelles
Loire-Forez et autres..................................................................................................................................... 466
51. TRIBUNAL ADMINISTRATIF DE BORDEAUX; 2 octobre 1986 SEPANSO c/ministère de
l’Environnement et du Cadre de vie ............................................................................................................. 467
52. TRIBUNAL ADMINISTRATIF DE POITIERS, 26 Novembre 1986 (A.S.N.A.T.E.) ............................... 468
53. CONSEIL D’ÉTAT, 16 janvier 1987: Commune de Gif-sur-Yvette (Req. no. 55-711).............................. 469
54. CONSEIL D’ÉTAT, 20 février 1987, M. Chevalerias (Req. n° 70-051) .................................................... 470
55. TRIBUNAL CORRECTIONNEL MENDE, 12 Août 1987......................................................................... 471
56. CONSEIL D’ÉTAT. Section du Contentieux. 5ème et 3ème sous-sections. MINISTERE DE
L’INDUSTRIE, DES POSTES ET TELECOMMUNICATIONS ET DU TOURISME
c/L’Etat du 30 juin 1989 N 89.883. ............................................................................................................. 473
SECTION 9: CANADIAN JURISPRUDENCE
57. FRIENDS OF THE OLDMAN RIVER V. CANADA ................................................................................. 477
vi
BACKGROUND
INTRODUCTION
This publication has been developed in pursuance of the aims of Agenda 21 which recognizes, among other things,
the need to facilitate information exchange, including the dissemination of information on environmental law.
The compendium of judicial decisions was devised with two objectives. First, it aims to create awareness and enthu-
siasm among lawyers and non-lawyers alike on the current trends in the jurisprudence related to environmental mat-
ters. Second, it aims to provide resource materials for reflecting on specific pieces of court decisions from the point of
view of scope and perspective, grounded as they are in the unique legal traditions and circumstances of different
countries and legal jurisdictions.
The promotion of sustainable development through legal means at national and international levels has led to recog-
nition of judicial efforts to develop and consolidate environmental law. The intervention of the judiciary is necessary
to the development of environmental law, particularly in implementation and enforcement of laws and regulatory
provisions dealing with environmental conservation and management. Thus, an understanding of the development of
jurisprudence as an element of the development of laws and regulations at national and international levels is essential
for long-term harmonization, development and consolidation of environmental law, as well as its enforcement. Ulti-
mately, this should promote greater respect for the legal order concerning environmental management. Indeed, when
all else fail, the victims of environmental torts turn to the judiciary for redress. But today’s environmental problems
are challenging to legislators and judges alike by their novelty, urgency and dispersed effect. Over the last two dec-
ades, many countries have witnessed a dramatic increase in the volume of judicial decisions on environmental issues
as a result of global and local awareness of the link between damage to human health and to the ecosystem and a
whole range of human activities. In many countries, the judiciary has responded to this trend by re-fashioning legal -
sometimes age old - tools to meet the demands of the times, with varying degrees of success. But such practices have
hardly taken root in Africa where not much judicial intervention has been in evidence.
The complexity of environmental laws and regulations at national and international levels makes it necessary for
today’s legal practitioners, particularly from Africa, to urgently assimilate and understand the concepts and principles
arising from the developing jurisprudence. Only then would they be able to respond appropriately to the growing
environmental challenges. In most countries, awareness of the potential of judicial intervention in the environmental
field has grown largely because citizens bring proceedings in courts; while in other countries the effectiveness of the
judicial mechanisms are still poor because of lack of information and a dearth of human and material resources. This
is compounded by the weaknesses of institutions in charge of environmental law enforcement.
This Compendium is produced in the belief that this bottleneck can be overcome by the provision of information,
such as is contained in the Compendium. The information will be a resource for training and awareness creation.
It is vital today that lawyers in all countries keep abreast of the jurisprudence in other countries, in order to appreciate
pertinent changes and trends in their own countries. Comparative study of judicial intervention offers a formidable
avenue for the enforcement of environmental law and the vindication of public rights. Courts have to entertain
environmental suits and decide on the law in each specific context. As stressed by Raymond Avrilier in “l’Ecologie à
l’épreuve du droit”, “ legal practitioners must understand and tackle questions of current policies, scope of adminis-
trative competence and conflicting expert evidence in environmental cases”.
Given the novelty of environmental law, this Compendium is a unique opportunity for practitioners, particularly those
from Africa, where case law is still scarce, to raise their level of awareness and sensitivity to ecological concerns and
to share their experiences on possible approaches to resolving environmental disputes.
The Compendium is divided into national decisions and international decisions, each numbered Volume 1. It is antici-
pated that after one year, subsequent volumes will be published of either national decisions or international decisions,
as the availability of materials and resources permit, and if the response to this Volume indicates that demand for such
material exists. The volume on national decisions is itself divided into parts reflecting emerging themes in environ-
mental litigation. However these themes provide only a loose grouping, and the reader would be well advised to read
the cases without undue attention to the grouping adopted here, as in many instances, the themes recur in several
cases. Secondly, the first part of the volume contains cases in the English language which are drawn from the common
law jurisdictions while the second part contains cases in the French language which are drawn from the civil law
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
system. In both cases the reproduction of the cases is preceded by an overview and analysis of the cases. This is in the
English language for both the English language and French language decisions. The decisions at international level
contains judgements from the International Court of Justice as well as of arbitral tribunals. No particular thematic
division has been attempted for these. The cases are reproduced simply in chronological order.
For further information or for comments please contact:
The Task Manager
UNEP/UNDP/Dutch Joint Project on Environmental Law and Institutions in Africa
UNEP - ELI/PAC
P.O. Box 30552
Nairobi, Kenya
tels. 254 2 623815/623923/624256/624236
Fax 254 2 623859
Email: charles.okidi@unep.org
viii
BACKGROUND
BACKGROUND TO ENVIRONMENTAL LITIGATION
The Legal Basis of Civil Action
Judicial intervention in environmental issues arises when persons resort to court action to seek redress for a
grievance. Court action can be either civil action or criminal action. Civil action is resorted to typically by private
parties while criminal action tends to be the preserve of public authorities. However, the boundaries are not at all
seamless: there are many instances of public authorities bringing civil action, and of private individuals initiating
criminal proceedings (i e. private prosecutions). These tend, however, to be exceptional. Whereas this Volume has
focused on civil actions, there are examples of criminal prosecutions among the French cases.
The traditional position has been that, whereas a public authority may take action explicitly to protect the envi-
ronment, a private litigant can only take court action to seek redress for a private injury. Any environmentally protec-
tive effect resulting from the private action would be purely incidental. Where the private individual wishes to bring
action to redress an injury to the public he has to seek the permission of the Attorney General to use his name in an
action known as a “relator action.”
The traditional position found expression in the jurisprudence of the courts in common law and civil law jurisdic-
tions alike. Gouriet v Union of Post Office Workers [1978] AC 435 is a leading English authority on the point. The
House of Lords stated the position as follows:
... the jurisdiction of a civil court to grant remedies in private law is confined to the grant of remedies to litigants
whose rights in private law have been infringed or are threatened with infringement. To extend that jurisdiction to
the grant of remedies for unlawful conduct which does not infringe any rights of the plaintiff in private law is to
move out of the field of private law into that of public law with which analogies may be deceptive and where
different principles apply. (p. 500).
A private individual could however bring action in his name on the basis of an interference with a public right in
two situations: where the interference with the public right also interferes with some private right of the person
concerned or where, in the absence of any interference with a private right, the person concerned has suffered damage
peculiar to himself, which is additional to that suffered by the rest of the public.
The basis of a civil law claim is a “cause of action.” This arises when an injury is caused to a person or property.
If the injury is caused by a public body in the context of the exercise of public powers or the performance of a public
duty the cause of action is in public law, whereas if it is caused by a private person the cause of action is in private law.
The causes of action in public law are ultra vires, natural justice and error of law. The remedies for their redress are
certiorari, prohibition, mandamus, and declaration. The causes of action in private law are trespass, nuisance, the rule
in Rylands v Fletcher (the strict liability rule) and negligence. The remedies for their redress are an award of dam-
ages, injunction and a declaratory judgement.
A civil law action in public law is designed for challenging the legal validity of the decisions and actions of public
bodies. This is the common law process of “judicial review.” It is now largely provided for by statute. Judicial review
is not to be confused with action taken in private law to redress private wrongs, and one may not seek judicial review
instead of taking action in private law simply because the defendant happens to be a public authority. The remedy is
specifically designed for challenging the exercise of public power or the performance or failure to perform a public
duty. Where the dispute with the public body does not relate to the exercise of public power (or the performance of a
public duty), redress cannot be sought through a judicial review application; the public body must be sued through an
action in private law, like any other wrongdoer.
1. Judicial Review
Judicial review is a remedy that may be used to:
(i) quash a decision (certiorari)
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
(ii) stop unlawful action (prohibition)
(iii) require the performance of a public duty (mandamus)
(iv) declare the legal position of the litigants (declaration)
(v) give monetary compensation
(v) maintain the status quo (injunction).
Judicial review may be awarded where a public body has committed the following wrongful acts or omissions:
(i) where it has acted beyond its legal powers (i.e. ultra vires); a decision or an act of a public body may be ultra
vires for reasons such as the failure to take into account relevant matters or taking into account irrelevant matters.
(ii) where it has acted contrary to the principles of natural justice, which require an absence of bias and a fair hearing
in decision making.
(iii) where it has acted in error of law.
Judicial review is a remedy under both statute and the common law, and has been adopted by all the common law
jurisdictions.
(a) Judicial review as a statutory remedy
Statutes typically provide that persons who are aggrieved with the decision of a public body may apply for a
review to the courts. “Person aggrieved” was defined in a leading English authority A.G (Gambia) v Njie [1961] 2
All E.R. 540. Lord Denning said:
The words “person aggrieved” are of wide import and should not be subjected to a restricted interpretation. They
do not include, of course, a mere busybody who is interfering in things that do not concern him, but they do
include a person who has a genuine grievance because an order has been made which prejudicially affects his
interests.
(b) Judicial review as a common law remedy
Quite apart from, and independently of, statutory provisions, judicial review is available as a common law rem-
edy to which resort may always be had to challenge the decisions and actions of public bodies. In England, the
Supreme Court Act 1981 and Order 53 of the Rules of the Supreme Court stipulate the procedure to be adopted in
such cases. Similar procedures have been adopted by other common law jurisdictions.
Order 53 requires that the applicant seek leave of the court before filing the application. Leave is only granted if
the court considers that the applicant has “sufficient interest” (or locus standi) in the matter in issue. Courts around
the world have given varying interpretations to this concept, particularly in the context of environmental litigation.
This has led to action in some countries, such as the Republic of South Africa, to introduce statutory provisions in the
Constitution or elsewhere, widening the opportunities for access to the courts.
2. Action in private law
The private law causes of action are trespass, nuisance, the rule in Rylands v Fletcher (the strict liability rule)
and negligence.
(a) Trespass
Trespass arises where a person causes physical matter to come into contact with another’s land. Trespass, there-
fore, protects an occupier’s right to enjoy his or her land without unjustified interference. It is limited, however, to
direct, rather than indirect, interferences.
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BACKGROUND
(b) Nuisance
There are two types of nuisance; public nuisance and private nuisance. Often the same act gives rise to both types
of nuisance at the same time.
A public nuisance is an interference with the public’s reasonable comfort and convenience. It is an interference
with a public right and constitutes a common law criminal offence, quite apart from providing a cause of action in
private law. In the English case of Attorney General v P.Y. A. Quarries Ltd [1957] 2 Q.B. 169 Lord Denning said of
public nuisance:
It is a nuisance which is so widespread in its range and so indiscriminate in its effect that it would not be reason-
able to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be
taken on the responsibility of the community at large.
A private nuisance is an interference with an occupier’s use and enjoyment of his land. Not all interferences,
however, amount to a nuisance. Nuisances are those interferences which are unreasonable, causing material and
substantial injury to property or unreasonable discomfort to those living on the property. The liability of the defendant
arises from using land in such a manner as to injure a neighbouring occupier. Thus nuisance imposes the duty of
reasonable use on neighbouring occupiers of land. It is the cause of action most suited to resolving environmentally
related disputes between neighbouring landowners.
The reasonableness, or unreasonableness, of the use giving rise to the complaint is determined on the basis of the
locality in which the activity in issue is carried out. The English case of Sturges v Bridgeman (1879) 11 Ch.D. 852
is illustrative of this point. A confectioner had for more than twenty years used a pestle and a mortar in his back
premises which abutted on the garden of a physician. The noise and vibration were not felt as a nuisance and were not
complained of. But in 1973 the physician erected a consulting room at the end of his garden, and then the noise and
vibration became a nuisance to him. His action for an injunction was granted, the court holding that “whether any-
thing is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but
by reference to its circumstances.”
(c) Strict Liability: the Rule in Rylands v Fletcher
This rule is based on the facts of the English case after which it is named. The defendant had constructed a
reservoir to collect and hold water for his mill. Under his land were underground workings of an abandoned coal mine
whose existence he was unaware of. After the reservoir had been filled the water escaped down the underground
workings through some old shafts, and flooded the plaintiff’s colliery. The plaintiff filed suit and the court decided
that:
the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief
if it escapes must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which
is the natural consequence of the escape.
The case was appealed to the English House of Lords which upheld the decision, one of the judges adding that the
defendant was liable because he had been engaged in a “non-natural use of his land.”
The rule makes an occupier strictly liable for the consequences of escapes from his land. However, this cause of
action has not been relied a great deal partly because of difficulties in ascertaining the true meaning of “non-natural
use.” Some have argued that “non-natural use” refers to the conduct of ultra-hazardous activities on land, while others
hold that it means no more than bringing on to land things “not naturally there.”
(d) Negligence
Negligence arises from a failure to exercise the care demanded by the circumstances with the result that the
plaintiff suffers an injury. In contrast to the three other causes of action, the basis for the action is not the occupation
of property. A plaintiff needs to show that he is owed a “duty of care”, and that the defendant has breached that duty
of care, with consequent injury to the plaintiff.
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The leading authority on negligence is the English case of Donoghue v Stevenson [1932] AC 562. Lord Atkinson
said in that case that the duty of care is owed to “persons so closely and directly affected by the defendant’s act that he
ought reasonably to have them in contemplation as being so affected when directing his mind to the acts or omissions
which are called into question.” In other words, the duty of care is owed to those whom the defendant could foresee
might suffer injury as a result of the defendant’s act or omission.
3. The Remedies
The three remedies in private law are damages, injunction, and declaratory judgement.
An award of damages is compensation given to a party who has suffered an injury. The sum awarded is based on
the principle that the injured person should be placed in the position he or she would have been in if he had not been
injured.
An injunction is an order from the court directing a party either to do or to refrain from doing something. It is
granted to stop a continuing or recurring injury, or in circumstances where damages would not be an adequate com-
pensation. Typically, an injunction will not be granted unless the damage is serious. The Court will balance the
inconvenience which declining to grant the injunction would cause the plaintiff against the inconvenience which
granting it would cause the defendant.
A declaratory judgement is the court’s declaration of the rights and duties of the parties before it. Its value lies in
resolving a dispute by setting out clearly the legal position. Most litigants will act in accordance with the Court’s
declaration without the need for further orders. However, as the House of Lords in the English case of Gouriet v
Union of Post office Workers “the jurisdiction of the Court is not to declare the law generally or to give advisory
opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the
litigation before it and not those of anyone else.” (p. 510)
4. The protection of the riparian owner’s right to water
There is one other entitlement under the common law which can form a basis of environmental litigation; the
riparian owner’s right to water.
Under the English common law a landowner is presumed to own everything on the land “up to the sky and down
to the center of the earth. However, running water, air and light are considered to be “things the property of which
belongs to no person but the use to all” [see Liggins v Inge (1831) 131 E.R. 263, 268]. Therefore, a landowner has no
property in running water, air and light; all that his proprietorship entitles him to, as an incident of such proprietor-
ship, is a “natural right” to use these elements.
Thus, a landowner whose land abuts running water, i.e. a riparian owner, has a natural right to water. The riparian
owner is able to exercise, as of right, the right available to all members of the public to use running water since he has
an access to the water which non-riparian owners do not have. The right of use is available equally to all riparian
owners and therefore any one riparian owner must use it reasonably. No one riparian owner may use the water in
such a way as to prejudice the right of other riparian owners [Embrey v Owen (1851) 155 E.R. 579]. Other riparian
owners have a cause of action if there is unreasonable use by any one owner.
The scope of the riparian owner’s rights extends to access, quantity and quality. Access enables the riparian
owner to navigate, embark and disembark on his land. Quantity enables the riparian owner to abstract, divert, obstruct
or impound the water to the extent of its natural quantity. He may use the water abstracted for ordinary (domestic)
purposes such as drinking, cooking and washing, and for these purposes may abstract as much as he needs without
restriction. Secondly, he may use it for “extraordinary” purposes such as irrigation, but in this case must restrict the
quantity he abstracts to that which does not prejudice the rights of other riparian owners. Thirdly, a riparian owner
may attempt to abstract water for use outside of his land, but the common law disallows such “foreign” use of water.
On quality the riparian owner is entitled to have the water in its natural state of purity.
If any of these rights are interfered with, the riparian owner has a cause of action. However, as the House of Lords
held in the English case of Cambridge Water Company v Eastern Counties Leather plc ([1994] 1 All E.R. 910),
the suit itself must be based on the traditional common law causes of action: trespass, nuisance, Rylands v Fletcher
(strict liability) and negligence. It is the injury suffered which arises out of riparian ownership.
xii
BACKGROUND
Background to the Civil Law Judicial System
Part II of this Compendium reproduces examples of judicial decisions deriving from France, and a number of
other civil law jurisdictions. It is therefore important to consider briefly the civil law system. On the whole this is
exemplified by the French legal system, from which most French speaking African countries have derived their legal
systems.
French judicial decisions can only afford analogies, not precedents, for courts which are so differently constituted
as those in the English-speaking common law world. However, some of these analogies point to principles of general
application, even though there are distinct differences as regards their form and style.
Among these differences are, first, that the word jurisprudence is not generally used in the civil law legal system
in the same sense as in the common law system. In the former, it refers to something like the ‘Case Law’, the English
term “jurisprudence” being equivalent to the French “Théorie générale du droit.
The civil law system does not recognise the absolute authority of judicial precedents. It also attaches more
weight to jurists writings than does the common law system. A key feature of the system is its grounding in a series
of Codes and other statutes. Consequently, the fabric of the law is primarily statutory, the judiciary’s task being
limited mainly to applying the provisions of the existing legal texts.
In principle, in the civil law system, even decisions of the superior courts are not recognised as automatically
binding. However, for a long time now, the decisions of the Courts (or la jurisprudence) have been acknowledged as
playing a major role in the development of the law in the civil law system and the creative function of the judiciary is
now widely accepted. But, even then, though it is now generally accepted that decisions of the Court de Cassation, for
example, are to all intents and purposes, regarded as authoritative for the future, the lower Courts still resist innova-
tions of the Court de Cassation. In this they are often encouraged by the writers of doctrine.
Another characteristic of the civil law system is that, although the decisions are reported in the Official Series on
a scale probably comparable to that of common law jurisdictions, the legal judgements of the courts consist usually of
a very short enunciations (embodied in a series of complex wordings (sentences), each prefaced by the words
considérant que or attendu que (enumeration of facts and the reasons for the decision), without any citation or
discussion of authorities.
An Example of a Civil Law Judicial System: The French Judicial System
In France, the judicial system and the various jurisdictional allocations are set out in the constitution and various
basic statutes. Its structure is summarised briefly below.
1. On the general principles that apply in the organisation of justice in France, the following stand out:
- The collegiality of jurisdiction (up to three judges can be found in one court);
- The fixity and permanence of jurisdictions;
- The professional status of judges (being a dominant feature);
- The total independence of judges (from the political influence, the influence of other judges as well as of the
parties among others);
- The fact that justice is free of charge;
- Equality of access to justice and neutrality of the judges;
- The public nature of the administration of justice;
- The adversary nature of proceedings before the judge;
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
- The rule of a dual level of jurisdiction (trial and appellate levels);
- The responsibility of the State to ensure that justice is carried out swiftly and adequately.
2. The institutions of justice, commonly called “jurisdictions,” are:
- The tribunaux at a first degree (e.g. Tribunal de Grande Instance) and;
- The Cours d’appel (Appellate courts) at the second level.
There are several appellate courts of co-ordinate jurisdiction in France. However, some jurisdictions at a superior
level are also called “tribunal” such as the “Tribunal des Conflits” and others are called “Conseils” such as the
“Conseil d’Etat” or the “Haute Cour de Justice”. These terminologies have a bearing on the designation of judicial
decisions. The decisions of tribunals are called “Judgements” while the decisions of the courts are called “arret”(or
order). When the decision has been issued by only one judge, they are called “Ordonnance” or, in some cases, “Deci-
sions”.
Jurisdictions which have fewer cases to handle are said to be “Ordinary jurisdictions” and those whose work is
voluminous and specialised are said to be the “juridictions spécialisées”.
As regards the powers of the appellate courts, though the French legal system considers an appeal as the continu-
ation of the original suit, the powers, prestige and duties of the judges in courts of original jurisdiction and those of
the ones in the appellate courts are different to a large extent. The appellate court has powers as regards the amend-
ment and return of plaints and memorandum of appeal; the withdrawal of the suit where there is mistake, or where
there is need for separation; trial of misjoined suits; and the like.
The French judiciary system consists typically of two categories of judicial orders:
- The juridictions judiciaires, which have jurisdiction on both criminal and civil matters and;
- The juridictions administratives, which are many and among which the most important is the Conseil d’Etat , (
presided by the Prime Minister or his representative). These deal with administrative matters.
The Conseil d’Etat has got four specialised sections and has advisory administrative powers related to finance,
interior affairs, public works and social affairs. It gives opinions on major administrative issues.
One other section of the Conseil d’Etat is judicial in nature. It is composed of one chairman, three (3) vice-
chairmen and a number of counsellors, “maître de requêtes”, and “auditeurs”. The Chairman is the judge of single
matters brought before that section.
Many subordinate courts act under the supervision of the Conseil d’Etat as they deal with various issues such as
the national budget, the efficacy of the general administration of the State, public enterprises and so on.
Apart from the two categories set out above there are other specific types of jurisdictions which are totally
different from the ones mentioned above. There is the so-called Tribunal des conflits, which in rank, is on top or above
the two orders of jurisdictions. It deals with matters that involve the determination of competence amongst the two
known orders of jurisdiction, particularly when a conflict of mandates arises. Its role is limited to determining the
jurisdiction which is competent in the matter. There is also the Conseil Constitutionnel whose main role is to deter-
mine the ‘constitutionality of laws’. Its role has evolved into an indirectly political one as it deals with cases involv-
ing, for example, claims related to presidential or parliamentary elections.
In summary the civil order deals with matters related to civil liability proceedings, including criminal offences,
while the administrative order deals with matters related to public authorities’ decisions affecting private persons.
However, the boundary between the two orders of jurisdiction is not rigid.
One can also say that, in France, the courts have jurisdiction to try all suits of a civil nature except suits whose
cognisance is expressly or impliedly barred by law.
xiv
BACKGROUND
As regards the nature or subject matter of the suits, certain courts in France are courts of special jurisdiction,
inasmuch as some classes of cases involve disputes with which superior or specially experienced tribunals are par-
ticularly familiar, and which can more satisfactorily be disposed of by them, such as administrative decisions, revenue
issues, and the like. Furthermore, cases of importance affecting considerable interests or involving questions of intri-
cacy are left to be determined by the higher courts. Additionally, under the French Codes of Civil Procedure and
Administrative Tribunals, it is provided that where the claim is in a particular field, that field is regarded as the
subject-matter of the suit.
As regards the court in which such a suit should be brought, reference should be made to the administrative
tribunals, particularly the “Conseil d’Etat” in the case of administrative jurisdictions. Under the French legal system,
in matters relating to public matters, such as cases that involve public nuisances, suits may be may be instituted,
though no special damage has been caused, for a declaration and injunction or for such other relief as may be appro-
priate to the circumstances of the case. In principle, as in common law systems, a private individual cannot sue in
respect of a public nuisance unless he shows that he has suffered special damage thereby.
Another relevant fact is that, under the French legal system, national courts are empowered to pass judgement
against a non-resident foreigner, provided that the cause of action arose within the jurisdiction of the Court pronounc-
ing the judgement.
The term cause of action as used here applies to torts as well as contracts. The meaning of the term cause of
action has been the subject of considerable controversy. It has however been settled in the numerous decisions in
which the question has been discussed extensively in the context of environmental litigation. It has been held that the
term means either every material fact which needs to be proved by the plaintiff to entitle him to success, or everything
which if not proved, would give the defendant an immediate right to judgement. The term is composed of many
components, including the requirement that there must have been an infraction of the right claimed.
Jurisdiction in the French Civil Law System
As in any other legal system, the competence of a court in the French legal system means the “court’s jurisdiction.”
Jurisdiction depends upon the nature or subject matter of a suit and upon its location, but often not on the pecuniary
limits to the jurisdiction of the tribunal or court. While theories may differ as to the sources of judicial authority,
environmental law suits now being litigated in many civil law countries, including France typically are initiated by
environment protection organisations against Government agencies and local authorities’ decisions. The standing of
these organisations rests basically upon their claim as being the appropriate representatives of the public interest. The
liability of government bodies to be sued often depends on the existing legislation. However, whether a suit will lie at
the instance of the Government depends on the existing substantive law.
As a commentator said, “according to the exact conception of it given by the Roman lawyers, “Jurisdiction”consists
in taking cognisance of a case involving the determination of some juror relation, in ascertaining the essential points
of it, and in pronouncing upon them.” The word jurisdiction is commonly used to mean jurisdiction in the ordinary
sense described above, that is, a reference to local or pecuniary jurisdiction or to the Parties. It can also refer to the
subject matter of a suit or the legal authority of a court to do certain things. All these possible meanings are provided
in the French Code of Civil Procedure, the Code of Administrative Tribunals and the other Statutes that create the
specialised jurisdictions and make the distinction between the two categories of legal settings (or orders): the civil
order and the administrative order.
The existence of jurisdictions is primarily determined with reference to the law of the country. However, it is a
general principle in civil law systems that whenever jurisdiction is given to a court by an enactment, and such jurisdic-
tion is only given on certain specified terms contained in the enactment itself, these terms must be complied with in
order to sustain the claim to jurisdiction. If they are not complied with the claim to jurisdiction cannot be sustained.
This principle is emphasised in the French Code of Civil Procedure and Code of Administrative Tribunals. However,
to found jurisdiction, there must, in the first place, be authority to pass judgement, that is, the authority to entertain
judicial proceedings.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
French Case Law and Environmental Liability
This part attempts to explain the framework within which, in France, those whose property or health is harmed by
environmental hazards find compensation, and also to define some of the principal areas of practice and procedure
that arise in bringing or defending environmental cases in France, and in civil law systems generally.
The principles relating to civil liability for environmental damage in France do not constitute a single body of
law, even though the Code of Civil Procedure and the Code of Administrative Tribunals give an orientation as to the
methodological aspects of litigation in general, which also concern environmental matters.
These principles constitute a patchwork of concepts related to rights and duties which have been developed by
the Courts and Tribunals over many years in the general area of civil liability and compensation, and specifically, in
the area of the tort of nuisance.
In France, it is not necessary for the claimant to show that ownership or occupation of land has been affected by
a public nuisance, as public nuisance is a criminal offence as well as a civil tort. To be a public nuisance, the relevant
activity and its effects do not have to be widespread.
Increasingly, it is no longer necessary that a class or group of citizens who come within the sphere or neighbour-
hood of the operation of the nuisance must be materially affected in terms of their reasonable comfort and conven-
ience. The grounds for civil liability for environmental harm result either from a breach of statutory duty or are
created by specific provisions in the domestic legislation such as those of the “Code Rural”.
The relevant “environmental torts” found in most civil law systems are negligence, nuisance and trespass. In
these system most aspects of the law on nuisance can be described as having been developed specifically to address
the consequences of pollution or other effects on the environment of hazardous activities and substances. The types of
nuisance are based on the fundamental duty that each person has not to conduct himself in a manner that unreasonably
interferes with the use by others of their land and property or with the enjoyment of others’ public rights. In determin-
ing liability in nuisance, the judge is required to strike a balance between the interests of the claimant and those of the
defendant, having regard to the level of interference that a neighbour can be expected to tolerate.
Liability for injury caused to another is generally based upon fault in French law, as provided in Article 1382 and
1384 of the Civil Code. Article 1384 provides that: “A person is liable not only for the damage he causes by his own
act, but for that caused by the acts of persons for whom he is responsible or by things that he has under his guard”.
Article 1384 of the Civil Code is considered by the French courts to have established a presumption of fault
which cannot be rebutted by claims that there was no fault, and it is in fact similar to the system of absolute or strict
liability, in that the liability of the person who under his guard has the inanimate object causing the damage is pre-
sumed liable, unless he can prove that the damage was the result of Force Majeure, or the act of the plaintiff himself,
or a cause étrangère which was normally unforeseeable so that the damage was unavoidable and could not be im-
puted to him.
The presumption of fault, which is applied to the automobile accidents for example, has been justified by the
French courts on the basis of the equitable considerations on account of the large number of accidents caused by
motor vehicles and the impossibility in many cases of proving fault on the part of the driver.
The application of Article 1384 in the area of environmental risks and industrial accidents is appropriate. Further
guidance as to applying such a principle of liability can be found in the following quotation from a case of an indus-
trial accident. An author pointed out that:
“As machines took the place of man ... the number of accidents not only increased but, and this is more important,
changed their character. Accidents came to have very often an obscure origin, an uncertain cause that made it hard to
place responsibility ... The victim had to deal with powerful companies whose rules and obligations they did not know
and with whom they engaged in such an unequal batter that they were defeated in advance. The defendants took refuge
behind Article 1382 which, though it appears at first to give a basis for recovery in many cases, actually serves as a
defence.”
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BACKGROUND
Besides, the right of private individuals to bring civil claims in respect of public and private nuisances is to be
distinguished from the power of local authorities such as the so called prefet, in respect of statutory nuisances as
defined under the Law on the Classified Installations or under the Rural Code. These laws impose administrative
duties and sanctions to the owners or operators of such establishments as part of the prevention and inspection policy
and procedures.
The tort of negligence also has wide application to a range of public activities, particularly in the building indus-
try and in the field of regulatory control or nature protection (eg the control of wild fires). The key elements here are:
A- The existence of a situation in which the law requires a person to exercise care towards other person(s) who is or
are the claimant(s),
B- Breach by the defendant of the objective standard of care,
C- Establishment of a link between the carelessness and the damage or injury which has resulted, and,
D- The reasonable foreseeability of the carelessness giving rise to the damage or injury which it has caused.
The continuing analysis and reappraisal by the tribunals of the basic principles underlying these rights and obli-
gations in the environmental risk field is exemplified in the more recent decisions of the “Conseil d’Etat”, the highest
jurisdiction dealing with administrative matters in France.
However, the cases dealt with by the Conseil d’Etat give the impression that it is not at ease with environmental
matters, particularly on issues that involve transboundary aspects. The consequence of its attitude is illustrated in the
questions that arise from its Sentence of 18 April 1986 related to “Société Les Mines de Potasse d’Alsace versus
Province de la Hollande Septentrionale et autres”. In that particular case there were no stipulations in international
law as at 22 December 1980, which would have prevented the administrative authorities mentioned in the case, from
issuing pollution licences. To understand this negation of any of the then existing international rules by the French
jurisdiction, it is worth reading the conclusions arrived at by the Commissaire du Gouvernement ( equiv. Attorney
General), which are remarkable from the point of view of the reasoning, but contestable from the point of view of its
substantial foundations.
Meanwhile, in addition to making awards for compensation in case of damage, in many cases, the civil law courts
also grant injunctions ordering persons causing environmental harm to cease the activities, which are responsible for
damage. Injunctions may also be granted to restrain activities, which threaten to do harm. Occasionally, such injunc-
tions may be mandatory, i.e. requiring the person not only to stop the polluting activity complained of, but also take a
positive remedial action, such as to make safe a source of that pollution or remove it.
The ability of private individuals, or groups, to enforce the provisions of environmental protection legislation
provides a person aggrieved by a polluting activity with a legal means of bringing pressure to bear on the person
responsible for that activity to abate it or to prevent its repetition. In France, as in other countries, the threat of
environmental litigation for industrial concerns has increased greatly in recent times, as the conceptual foundation of
the principles of locus standi are increasingly under test and scrutiny. This is a result not only of wider powers of the
environmental agencies to impose remedial liability but of changes in public administration and legal procedures that
have increased the will and capability of private individuals to bring civil action claims against polluters. The claims
concerning nuisances and damage to health arising from pollution frequently involve many claimants.
As far as procedure is concerned, the institution of legal suits is made by the presentation of a plaint to the court,
in which a person sets forth his cause of action in writing. This can be in situations where either general legal princi-
ples are involved, - (principles of common application in almost all countries), or where those in which the French
jurisprudence notions prevail.
The particular elements of the environment-related jurisprudence found in the French legal system simply consti-
tute the context in which the policy issues such as combating water pollution, the management of classified establish-
ments (or installations), protection of fauna , flora and the like, are resolved through the judicial system. However, the
common characteristic of any legal system is that before any environmental resource that is declared public can be
used, some kind of authorization from the government authority is necessary.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
Lack of such an authorization, or shortcomings in the procedures for obtaining such an authorisation are consid-
ered as an offence. In that area, two kinds of permits are usually issued: - a permit or licence, which is less permanent
and easily revoked, and - a concession, which sets up reciprocal rights and obligations between the grantor and the
grantee. This is the main feature of major French environmental legislation and other resource-control based legisla-
tion in most countries that are attempting to modernise their environmental legislation.
In the French legal system, provisions to afford better administrative control over the management of environ-
mental resources are often introduced by statutes that give the courts enough power to define or determine the rights
of users so long as they observe the existing legal provisions and the balance of the interests involved, particularly
with the respect due to private property and public interest. The licencing or administrative authorizations and the
inspection systems are adopted in order to subject most natural resources to administrative control.
xviii
OVERVIEW
OVERVIEW OF JUDICIAL DECISIONS IN ENGLISH
The following themes are recurrent in environmental litigation: the question of locus standi; the role of, and
procedure for, environmental impact assessment; the choice of forum for filing suit; the public trust doctrine as a
mechanism for environmental management; the precautionary principle; the polluter pays principle or the concept of
liability for environmental damage; the concept of a human right to environment; and the proper place of procedural
rules in environmental litigation. This attempt at categorization of the issues must not, however, lead to the [false]
impression that the cases fall neatly into the categorizes set out here. Few court cases ever concern only one single
issue, and this emerges clearly in the discussion that follows.
(a) Locus standi
The following cases illustrate the way courts have dealt with the issue of locus standi in environmental litigation.
1. Sierra Club v Morton 92 S.Ct. 1361 (1972) (USA)
2. Von Moltke v Costa Areosa (Pty) Ltd 1975 (1) [C.P.D.] 255 (South Africa)
3 Wangari Maathai v Kenya Times Media Trust HCCC No 5403 1989 (Kenya)
4. Wangari Maathai v City Council of Nairobi HCCC No 72 of 1994 (Kenya)
5. L.N. Kariuki v County Council of Kiambu Misc. App. No 446 of 1994 (Kenya)
6. Oposa v Factoran G.R. No 101083, July 30 1993 (Philippines)
7. M. Farooque v Bangaldesh, Civil appeal No 24 of 1995, 17 BLD (AD) 1997, vol XVII, pg 1 to 33; 1 BLC
(AD) (1996), pg 189 219, 1996 (Bangladesh)
8. Kajing Tubek v Ekran Bhd & Others [1996] 2 Malayan Law Journal (Malasyia)
9. Van Huyssteen & Others v Minister of Environmental Affairs & Tourism & Others 1996 (1) SA 283 (C)
(South Africa)
10. Maina Kamanda v Nairobi City Council HCCC No 6153 of 1992 (Kenya)
11. Verstappen v Port Edward Town Board & Others 1994 (3) SA 569 (South Africa)
12. Festo Balegele and 749 others v Dar Es Salaam City Council Misc. Civil Cause No 90 of 1991 (Tanzania)
13. Wildlife Society of Southern Africa & Others v Minister of Environmental Affairs & Tourism & Others
Case No 1672/1995 (South Africa).
14. Minister of Health & Welfare v Woodcarb (Pty) Ltd & Another 1996 (3) SA 155 (South Africa)
The traditional position on locus standi was articulated in the American case of Sierra Club v Morton. Sierra
Club, a membership corporation with “a special interest in the conservation and sound maintenance of the national
parks, game refuges and forests of the country”, brought a suit for a declaratory judgement and for an injunction to
restrain federal officials from approving an extensive skiing development in the Mineral King Valley in Sequoia
National Forest. It relied on the Administrative Procedure Act which accorded judicial review to a “person suffering
legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the mean-
ing of a relevant statute.” The Club based its case on the fact that the project would change the area’s aesthetics and
ecology. It did not allege that the challenged development would affect it or its members in their activities, or that they
used Mineral King.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
The Supreme Court observed that earlier decisions had held that persons had standing to obtain judicial review of
federal agency action where they alleged that the challenged action had caused them “injury in fact.” This case raised
the question whether injury of a non-economic nature to interests that were widely shared could found a claim for
judicial review. For instance, in reference to the road to be built through Sequoia National Park, the complaint alleged
that the development “would destroy or otherwise adversely affect the scenery, natural and historic objects and wild-
life of the park and would impair the enjoyment of the park for future generations.” The Court held that this type of
harm could amount to an “injury in fact” sufficient to lay a basis for standing: aesthetic and environmental well-being,
like economic well-being, were important ingredients of the quality of life, and the fact that particular environmental
interests were shared by the many rather than the few did not make them less deserving of legal protection through the
judicial process.
But, the Court also observed that the “injury in fact” test required more than an injury to a cognizable interest.
The party seeking review had himself to be among the injured. In this instance, the impact of the proposed changes
in the environment of the Mineral King would not fall indiscriminately upon every citizen. It would be felt directly
only by those who used Mineral King, and for whom the aesthetic and recreational values of the area would be
lessened by the development. The Sierra Club had not alleged that it or its members would be affected in their
activities or pastimes by the development, that its members used Mineral King for any purpose, or that they used it in
any way that would significantly be affected by the proposed actions. It had not done so deliberately in order to test
the theory that the fact that this was a public action involving questions as to the use of natural resources, and that it
had a longstanding concern with, and expertise in, such matters were sufficient to give it standing as a “representative
of the public.” The Court held, however, that a mere interest in a problem, no matter how longstanding the interest and
no matter how qualified the organization was in evaluating the problem, was not sufficient by itself to render the
organization adversely affected or aggrieved. Therefore, the Sierra Club lacked standing to maintain this action.
In a dissenting opinion Justice Douglas argued that there was need for a rule that allowed environmental issues to
be litigated in the name of the inanimate object about to be despoiled; 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.
A South African court came to a similar decision in Von Moltke v Costa Areosa (Pty) Ltd the facts of which were
comparable to Sierra Club v Morton. The applicant had been residing at Llandudno and subsequently purchased
property there because “he disliked crowded city life, and wished to live in a peaceful and quiet area which was close
to nature and to its natural condition.” The house which he purchased was about a mile from Sandy Bay. He became
aware that Sandy Bay was to be developed as a township and that an application had been submitted by the respondent
company to the Divisional Council of the Cape. He filed his written objections with the Secretary of the Provincial
Administration, and organized a petition for which he collected 4000 signatures, and a protest meeting. Subsequently,
he ascertained that bulldozing operations had already commenced and that the indigenous vegetation was being
destroyed.
The applicant alleged that the bulldozing operations would constitute a nuisance to his enjoyment of the property
as well as to the surrounding area and that irreparable damage was being done to the natural vegetation and that the
sand dunes were being disturbed. The applicant further contended that, by destroying the vegetation and interfering
with the ecology, the respondent was committing a public nuisance. He sought an interdict to restrain the respondent
from carrying on further operations and for an order directing the restoration of the property to the condition it had
been in before the operations commenced. The respondent challenged the applicant’s locus standi to bring the appli-
cation.
The Court held that, assuming that the destruction of the vegetation constituted a public nuisance, what rights had
the applicant in the matter? The party seeking relief had to show that he was suffering or would suffer some injury,
prejudice or damage, or invasion of right peculiar to himself, and over and above that sustained by the members of the
public in general. It was not enough to allege that a nuisance was being committed; an applicant had to go further and
allege facts from which it could be inferred that he had a special reason for coming to court. As this applicant had
failed to allege special damage or peculiar injury beyond that which he might sustain in common with other citizens
he had failed to show that he had locus standi to come to court.
This traditional position was upheld by the Kenyan courts in Wangari Maathai v Kenya Times Media Trust in
which the plaintiff sought a temporary injunction restraining the defendant from constructing a proposed complex at
inside a recreational park in the center of Nairobi. The plaintiff was the Co-ordinator of the Greenbelt Movement, an
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OVERVIEW
environmental non-governmental organization, but brought the suit on her own behalf. The defendant raised the
objection that the plaintiff lacked locus standi to bring the suit, and this was upheld by the Court which pointed out
that the applicant would not be affected more than any other resident of Nairobi. It was upheld again in Wangari
Maathai v Nairobi City Council in which the plaintiff sued for a declaration that the subdivision, sale and transfer of
lands belonging to the local authority was unlawful. The court held that the plaintiff had no particular interest in the
matter. The application in Lawrence Nginyo Kariuki v County Council of Kiambu was also dismissed on the basis
of locus. The plaintiff had argued that, because he was a shareholder of a farming company that owned land adjacent
to a forest which the respondent proposed to alienate, he had sufficient interest to maintain a suit for restraining
orders.
Oposa v Factoran and Dr Mohiuddin Farooque v Bangladesh provide an interesting contrast to the above
decisions.
Oposa v Factoran raised the issue whether the petitioners minors had a cause of action to prevent the misappro-
priation or impairment of Philippine rainforests. The complaint was instituted as a taxpayers class suit. It alleged that
the plaintiffs “[were] all citizens of the Republic of the Philippines, taxpayers and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the country’s virgin tropical rainforests.”
The suit was said to be filed for the petitioners and others equally concerned but “so numerous that it [was]
impracticable to bring them all before the court.” The minors asserted that they “represent[ed] their generation as well
as generations yet unborn.” They sought orders to (1) cancel all existing timber licence agreements in the country; and
(2) stop approving new timber licence agreements.
The Defendant sought a dismissal of the suit on the grounds that (1) there was no cause of action as the petitioners
had not alleged a specific legal right violated by the respondent, and (2) the issue raised was a political question which
properly pertained to the legislative and judicial branches of government. But the petitioners asserted that granting
timber licence agreements to cover more areas for logging than what was available was a judicial question as it
involved an abuse of discretion.
The Court held that the case was a class suit as the subject matter of the complaint was of common and general
interest not just to several, but to all, citizens of the Philippines. Consequently, since the parties were so numerous, it
was impracticable, if not impossible, to bring all of them before the court. The Plaintiffs were numerous and repre-
sentative enough to ensure the full protection of all concerned interests. The Court held further that the petitioners
could for themselves, for others of their generation and for the succeeding generations file a class suit. Their person-
ality to sue on behalf of succeeding generations could only be based on the concept of intergenerational responsibility
in so far as the right to a balanced and healthful ecology was concerned.
The Court held also that the complaint focused on one specific fundamental legal right, the right to a balanced and
healthful ecology which was incorporated in the Constitution.
In Dr Mohiuddin Farooque v Bangladesh the appellant was the Secretary General of the Bangladesh Environ-
mental Lawyers Association (BELA), an organization working in the field of environment and ecology. The Court
held that it was an aggrieved person because the cause it espoused, both in respect of fundamental rights and consti-
tutional remedies, was a cause of an indeterminate number of people in respect of a subject matter of public concern.
Further, the organization was acting bona fide and did not seek to serve an oblique purpose. However, the Court
rejected the submission that the Association represented not only the present generation but also the generation yet
unborn. It stated that this finding in the Oposa Case had been based on constitutional provisions in the Philippines
which did not exist in Bangladesh.
The Oposa case and Dr Mohuiddin Farrooque v Bangladesh apart, the majority of the cases have espoused the
traditional position on locus, and looked for some interest of the party before the court which would suffer over and
above the injury to be suffered by the general public.
In the Malaysian case of Kajing Tubek v Ekran Bhd & Others the plaintiffs were residents of longhouses in
Belaga, Sarawak who were affected by the Government’s proposed development of a hydroelectric project. They
sought a declaration that before the project could be implemented the defendants had to comply with the Environmen-
tal Quality Act of 1974 requiring an EIA for prescribed activities. By an order the Minister had excluded the applica-
tion of this Act to Sarawak and instead subjected the project to a procedure which, unlike the 1974 Act, did not
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provide for public participation in the EIA process. The defendants challenged the plaintiffs’ standing to bring the
suit. The court held that the Plaintiffs’ claim that their homes and land would be destroyed and their lives uprooted by
the project, and that they would suffer far more greatly and directly than other members of the public as their “land
and forest are not just a source of livelihood but constitute life itself, fundamental to their social, cultural and spiritual
survival as native peoples” were sufficient to justify their having a substantial or genuine interest to have the legal
position declared.
Similarly in the South African case of Van Huyssteen v Minister of Environmental Affairs & Tourism the
respondents proposed to build a steel mill on a farm near a national park and a lagoon, and had applied for the
rezoning of the land under the Land Use Planning Ordinance, 1985. The lagoon’s wetlands were protected in terms of
the Convention on Wetlands of International Importance. The lagoon was owned by a Trust, and the trustees, together
with one beneficiary of the trust, were the applicants. The trustees intended to build a home on the trust property.
Expert opinion was divided on whether the proposed mill would be environmentally undesirable. The applicants
sought a temporary injunction pending further investigation. The Court held that the applicants had locus standi as
their rights in respect of the trust property would be threatened.
The special interest of ratepayers in relation to their local authority was the basis for granting locus in the Kenya
case of Maina Kamanda v Nairobi City Council. The court granted two Nairobi residents and rate payers standing
to maintain a suit against the City Council on the basis that a rate payer, as opposed to a tax payer, has sufficient
interest to challenge in court the action of a public body to whose expenses he contributes.
But the mere fact of being a ratepayer is not sufficient, as the South African case of Verstappen v Port Edward
Town Board illustrates. The applicant was the co-owner of certain properties within the area of jurisdiction of the
first respondent local authority. One of the properties was adjacent to a worked out quarry and the other opposite it. In
1985 the respondent started using the quarry area as a site for the disposal of waste. The applicant launched an
application to interdict and restrain the respondents from using the quarry and to remove the refuse. The claim was
based on the grounds that the waste disposal site and the manner in which the respondent managed it constituted a
nuisance, and that the respondent was operating the facility illegally as it had not obtained a permit under the Environ-
ment Conservation Act of 1989.
The parties agreed that among the issues to be determined were first, whether the applicant had locus standi to
complain about the respondent’s failure to obtain a permit under the Environment Conservation Act and, second,
whether the applicant had suffered an injury or reasonably apprehended that she would do so.
The applicant argued that she had locus standi to challenge the respondent’s operation of the waste disposal site
without the necessary permit on the grounds that: (i) she was suffering damage by reason of the operation of the site
without the appropriate permit; and (ii) as a rate payer of the respondent’s local authority area she was entitled to
prevent illegality being committed by the respondent.
The Court observed that ratepayers had standing to interdict local authorities from dealing contrary to law with
their funds or property. The rationale for this was the relationship of trust existing between the Council and the
ratepayers in respect of municipal funds and property. The Court held that the mere fact that some municipal funds
were spent in managing the waste disposal site could not afford the applicant locus standi to interdict what she
regarded as an illegality as there was no allegation that the respondent’s manner of operation of the site was more
expensive than any others.
On the respondent’s failure to obtain the required permit, the Court held that in order to determine whether a
member of the public had locus standi to prevent the commission of an act prohibited by statute, the first inquiry was
whether the Legislature prohibited the doing of the act in the interest of any particular person or class of persons or
whether it was merely prohibited in the general public interest. If the former, any person who belonged to the class of
persons in whose interest the doing of the act was prohibited could interdict the act without proof of any special
damage. If not the applicant had to prove that he had suffered or would suffer special damage as a result of the doing
of the act.
The Court held that there was no basis for holding that the applicant belonged to a special class of persons in
whose interest the Act was passed; the Legislature intended the provisions to operate in the interests of the public at
large. That being the case the applicant was required to show that the contravention of the Act by the respondent had
caused or was likely to cause her some special damage. This she had failed to do (but see Wildlife Society of South-
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ern Africa & Others v Minister of Environmental Affairs & Tourism & Others below).
The Court observed that it was only because the applicant sought an interdict based on the alleged unlawfulness
of the respondent’s conduct that she had not established the requisite locus standi. She plainly had locus standi to
interdict the nuisance if was able to prove that the management and operation of the site constituted such nuisance (as
the Tanzanian case of Festo Balegele v Dar Es Salaam City Council illustrates).
The Court held further that, even if it had been prepared to assume in favour of the applicant that her locus standi
had been established it would not have granted an interim injunction pending the determination of the main issue of
nuisance. The balance of convenience was the decisive factor in determining the proper way to exercise the discretion
whether to grant an interdict. The manner in which the grant or refusal of an interdict would affect the immediate
parties to the litigation was not the only matter relevant to the determination of the balance of convenience. Where the
wider general public was affected, the convenience of the public had to be taken into account in any assessment of the
balance of convenience. If the interests of the other ratepayers living in the respondent’s local authority area were
taken into account, the balance of convenience was overwhelmingly against the grant of any interim relief to the
applicant.
In Festo Balegele & 749 Others v Dar Es Salaam City Council the applicants sought orders: (i) of certiorari to
quash the decision of the respondent to dump the City’s waste at Kanduchi Mtongani; (ii) prohibiting the respondent
from continuing to dump waste at the site; and (iii) of mandamus to direct the respondent to establish an appropriate
refuse dumping site and using it. The respondent did not dispute the fact that Kanduni Mtongani was zoned as a
residential area; that the applicants resided there; that the dumped refuse was burning and emitting smoke which
covered a wide area; and that it emitted an offensive smell and attracted swarms of flies. The applicant argued that, in
dumping the refuse where it did, the respondent was executing its statutory duty unlawfully. It had turned the area into
a health hazard and a nuisance to its residents. The applicants were thus aggrieved and had locus standi to apply for
restraining orders. The respondent resisted the application and indicated that the disposal of refuse in the area was
temporary while the respondent tried to find an alternative location. The respondent asked the court to exercise its
discretion in its favour as it would otherwise fail to perform its statutory duty of refuse collection and disposal.
The Court found that the applicants had locus standi, being resident in the area, and granted the orders sought.
Wildlife Society of Southern Africa & Others v Minister of Environmental Affairs & Tourism & Others
illustrates the use of civil measures to enforce statutory duties of environmental conservation. The applicants applied
for an order compelling the respondents to enforce the provisions of the Decree 9 (Environment Conservation) of
1992. The first applicant was the Wildlife Society of Southern Africa and the second applicant its Conservation
Director. The third and fourth applicants were two lawful occupiers of cottages located on the coast and members of
the Wild Coast Cottage Owners Association. The first respondent was the Minister of Environmental Affairs; the
second respondent the Premier of the Eastern Cape; the third respondent the Minister of Agriculture and Environmen-
tal Planning of the Eastern Cape; and the fourth to seventh respondents the chiefs or headmen of certain areas in the
Eastern Cape.
The applicants contended that the fourth to seventh respondents had granted rights of occupation and had allo-
cated sites within the coastal conservation area to private individuals, in each case for a very small consideration.
Shacks and dwellings had been constructed on those sites, which had resulted in environmental degradation, and
roads, pathways and tracks had been created through environmentally sensitive areas. The applicants contended that,
despite their efforts at persuading the first to third respondents to comply with the obligation to enforce compliance
with the provisions of the Decree, the respondents had not done so.
After initially contesting the applicants’ locus standi the first respondent conceded that the applicants had locus
standi on the basis of the provisions of the Constitution. The Court remarked, obiter, that in circumstances where the
locus standi afforded to persons by the Constitution was not applicable and when a statute imposed an obligation
upon the State to take certain measures in order to protect the environment in the interests of the public, then a body
such as the first applicant, with its main object being to promote environmental conservation in South Africa, should
have locus standi at common law to apply for an order compelling the State to comply with its obligations in terms of
such statute.
Minister of Health & Welfare v Woodcarb (Pty) Ltd & Another illustrates that public regulatory authorities
also have locus to enforce statutory measures using the civil process. The second respondent was the owner a saw
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milling business. This gave rise to saw dust and wood chips which needed to be disposed of through burning and the
respondent installed a “Reese burner.” In 1968 the Minister of Health had declared the whole country a “scheduled
area” under the Atmospheric Pollution Act of 1965 with the result that persons carrying on “scheduled processes
needed registration certificates authorizing the carrying on of the process.” Wood burning was one such process. The
respondent duly applied for a registration certificate and a provisional one was issued. In March 1992 the Department
of Health issued a directive to the effect that burners of the category of the Reese burner should be phased out within
three years. When the respondent’s provisional certificate expired in early 1994 the applicants refused to renew it. In
June 1994 the applicants commenced litigation to prevent the respondent from continuing to use the Reese burner.
The respondent resisted the application on the basis, among others, that the applicant had no locus standi to bring
it. He contended that the statute did not authorize the applicant to take civil action to enforce its provisions since it
conferred specific criminal penalties for contravention. The Court held that the Act contained no specific provisions
which the applicant or any other interested party could invoke to stop a person from contravening it. In those circum-
stances the principle that the Act was exclusive as to what could be done to enforce its provisions did not arise.
(b) Environment Impact Assessment
Since the US Environment Protection Act 1969 mandated environmental impact assessment as an integral part of
the development consent process many countries around the world have imposed a statutory requirement on develop-
ers to carry out environmental impact studies on their projects. Environmental Impact Assessment (EIA) is a struc-
tured process for gathering information about the potential impacts on the environment of a proposed project and
using the information, alongside other considerations, to decide whether the project should or should not proceed,
either as proposed or with modifications.
EIA focuses on the procedure for decision making. It does not itself determine whether or not the project should
proceed; a project with potentially adverse environmental impacts may be allowed to proceed if acceptable mitigatory
measures can be introduced. EIA aims to ensure that environmental factors are taken into account alongside other
factors (such as cost implications, technical feasibility, labour issues, profitability and so on) in deciding whether a
project should proceed. This is the innovative aspect of EIA: typically, without an EIA requirement, developers will
consider only cost, technical issues and profitability. EIA is a mechanism for ensuring that environmental factors take
their rightful place in the weighing scales.
The cases that follow illustrate the way in which US courts have interpreted the statutory requirement to carry out an
impact assessment of proposed projects.
1. Calvert Cliffs’ Coordinating Committee, Inc. v United States Atomic Energy Commission 449 F 2d 1109
(1971) (USA).
2. Sierra Club v Coleman XIV/6 ILM 1425 (USA)
3. Sierra Club v Coleman XV/6 ILM 1417 (USA)
4. Scenic Hudson Preservation Conference v Federal Power Commission 354 F.2d 608 (1965) (USA).
5. Natural Resources Defence Council v United States Nuclear Regulatory Commission (Vermont Yankee)
547 F. 2d 633 (1976) (USA).
6. Vermont Yankee Nuclear Power Corp. v Natural Resources Defence Council, Inc. et al 435 U.S. 519, 98
S.Ct. 1197.
Calvert Cliffs’ Coordinating Committee, Inc. v United States Atomic Energy Commission dealt with four issues:
(1) the effective date for implementation of the statutory EIA requirement;
(2) how agencies must deal with projects which were already in the pipeline (“ongoing projects”) at the time when
the mandatory EIA requirement became effective;
(3) the role of the agency in evaluating the EIA report; and
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(4) the role of EIA in setting environmental standards to be met by developers, and its relationship with other
standard setting agencies.
The case arose out of the rules which were adopted by the Atomic Energy Commission to govern consideration of
environmental matters in individual decisions. The petitioners objected to four aspects of the rules.
Although NEPA went into effect on 1st January 1970, the Rules imposed an effective date of 4th March 1971.
They thus prohibited parties from raising non-radiological environmental issues at any hearing if the notice for that
hearing appeared in the Federal Register before 4th March 1971.
In relation to ongoing projects, the Rules provided that when a construction permit for a facility had been issued
before compliance with the National Environmental Policy Act (NEPA) was required, but an operating licence had
yet to be issued, the Agency would not formally consider environmental factors or require modifications in the pro-
posed facility until the time of issuance of the operating licence.
Third, the Rules required that the Agency’s staff consider environmental factors but limited the role of the hearing
board whose function was to conduct an independent review of the staff’s recommendations. The Rules did not
require the board to consider environmental factors unless these were affirmatively raised by outside parties or staff
members;
Finally, the Rules prohibited the hearing board from conducting an independent evaluation and balancing of
environmental factors if other responsible agencies had already certified that their own environmental standards were
satisfied by the proposed federal action.
On the first issue, the Court observed that NEPA went into effect on January 1, 1970. The Commission’s Rules,
on the other hand, prohibited any consideration of environmental issues by its hearing boards at proceedings officially
noticed before 4th March 1971, fourteen months after the Act went into effect. The result was that major federal acts
having a significant environmental impact might be taken by the Commission without full compliance with NEPA.
The Commission explained that the long time lag was intended to provide an orderly transition in the conduct of the
Commission’s regulatory proceedings, and to avoid unreasonable delays in the construction and operation of nuclear
power plants urgently needed to meet the national requirements for electrical power. It argued that NEPA did not lay
down detailed guidelines and inflexible timetables for its implementation, and that there was no bar to arrangements
which were designed to accommodate transitional implementation problems.
The Court held that the absence of a timetable indicated that compliance was required immediately. Even if the
long delay had been necessary the Commission would not have been relieved of all NEPA responsibility to hold
public hearings on the environmental consequences of actions taken between 1st January 1970 and the final adoption
of the Rules. Although the Act’s effective date might not require instant compliance, it required that NEPA proce-
dures, once established, be applied to consider prompt alterations in the plans or operations of facilities approved
without compliance. The Court observed that the Commission’s delay was based on what it believed to be a pressing
power crisis. Inclusion of environmental issues in the pre 4th March 1971 hearings might have held up the licensing
of some power plants for some time. The Court held however that the very purpose of NEPA was to tell federal
agencies that environmental protection was as much a part of their responsibility as was the protection and promotion
of industries they regulated. The specter of a national power crisis could not be used to create a blackout of environ-
mental considerations in the agency review process.
The second issue related to the Commission’s Rules governing a particular set of nuclear facilities: those for
which construction permits had been granted without consideration of environmental issues but for which operating
licences had yet to be issued. These facilities, still in varying degrees of construction, included the one of most
immediate concern to one of the plaintiffs: the Calvertt Cliffs nuclear plant. The Commission’s Rules recognized that
the granting of a construction permit before NEPA’s effective date did not justify disregarding environmental conse-
quences until the operating licence proceedings, far into the future. It had provided for three measures during the pre-
operating licence stage: it required that a condition be added to all construction permits, whenever issued, which
would oblige the holders of the permits to observe all applicable environmental standards imposed by federal or state
law; it required permit holders to submit their own environmental report on the facility during construction; and it
initiated procedures for the drafting of its staff’s detailed environmental statement in advance of operating licence
proceedings.
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The Court observed that the Commission refused to take any action as a result of the material in the environmen-
tal reports. It would allow construction to proceed on the original plans, regardless of what the reports showed, and
would not consider requiring alterations in those plans even though the detailed statements had to contain an analysis
of possible alternatives and might suggest relatively inexpensive but highly beneficial changes. Thus, reports and
statements would be produced, but nothing would be done with them.
The Court observed that the Commission seemed to believe that the mere drafting and filing of papers was
enough to satisfy NEPA. It argued that a full consideration of alternatives and independent action would cause too
much delay at the pre-operating licence stage. It justified its Rules as the most that was “practicable in the light of
environmental needs and other essential considerations of national policy.” It cited the national power crisis as a
consideration of national policy militating against delay in the construction of nuclear power facilities. The Court
held that NEPA required that an agency had to consider alternatives to its actions which would reduce environmental
damage. That principle required that consideration of environmental matters had to be more than a pro forma ritual. It
was pointless to consider environmental costs without seriously considering action to avoid them.
The Court observed that the special importance of the pre-operating licence stage was that in cases where envi-
ronmental costs were not considered in granting a construction permit, it was likely that the planned facility would
include some features which did significant damage to the environment and which could not have survived a rigorous
balancing of costs and benefits. At the subsequent operating licence proceedings this environmental damage would
have to be fully considered. But by that time the situation would have changed radically. Once a facility had been
completely constructed, the economic cost of any alteration might be very great. In the language of NEPA, there was
likely to be an “irreversible and irretrievable commitment of resources” which would inevitably restrict the Commis-
sion’s options. Either the licensee would have to undergo a major expense in making alterations in a completed
facility or the environmental harm would have to be tolerated.
The Court held that by refusing to consider alterations until construction was completed the Commission might
effectively foreclose the environmental protection desired by Congress. It might also foreclose rigorous consideration
of environmental factors at the eventual operating licence proceedings. If “irreversible and irretrievable commitment
of resources” had already been made, the licence hearing might become a hollow exercise. A full consideration of the
cost implications in the original plans of a facility was appropriate well before the operating licence proceedings. In
order that the pre-operating licence review be as effective as possible the Commission needed to consider the require-
ment of a temporary halt in construction pending review. Although final operation of the facility might be delayed
thereby, some delay was inherent whenever a NEPA consideration was conducted, whether before or after the licence
proceedings. It was far more consistent with the purposes of the Act to delay operation at a stage where real environ-
mental protection might come about than at a stage where corrective action might be so costly as to be impossible.
The Court held that the Commission had to go further than it had and consider action as well as file reports and papers
at the pre-operating licence stage. Such consideration did not amount to a retroactive application of NEPA. Although
the projects in question might have been commenced and initially been approved before 1st January 1, 1970 the Act
applied to them since they had to still obtain operating licences before going into full operation.
The third issue related to the role of the agency in considering the EIA report. NEPA required that copies of an
agency’s staff’s detailed statement, and comments on it, “shall accompany the proposal [for the project] through the
existing agency review process.” The Commission’s Rules stated that if any party to a proceeding raised any environ-
mental issue, the applicant’s Environmental Report and the detailed statement would be offered in evidence. But if no
party raised any environmental issue, such issues would not be considered by the Atomic Safety and Licensing Board.
Therefore, although the Applicant’s Environmental Report, the comments on it, and the Detailed Statement would
accompany the application through the Commission’s review process, they would not be received in evidence, and the
Commission’s responsibilities under the NEPA would be carried out in toto outside the hearing process.
The Court held that the word “accompany” had to be read to indicate a congressional intent that environmental
factors, as compiled in the “detailed statement”, had to be considered through the agency review process. NEPA
required that agencies consider the environmental impact of their actions “to the fullest extent possible.” Compliance
to the fullest extent demanded that environmental issues be considered at every important stage in the decision mak-
ing process concerning a particular action. Whereas consideration which was entirely duplicatory was not required,
independent review of staff proposals by hearing boards was not a duplicative function. A truly independent review
provided a crucial check on the staff’s recommendations. The Court further observed that the Commission’s hearing
boards automatically considered non-environmental factors, even though these had previously been studied by the
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OVERVIEW
staff. The review process was an appropriate stage at which to balance conflicting factors against one another. And it
provided an important opportunity to reject or significantly modify the staff’s recommended action. Environmental
factors, therefore, could not be singled out and excluded at this stage from the proper balance of values envisioned by
NEPA. The Court observed that the greatest importance of NEPA was to require agencies to consider environmental
issues just as they considered other matters within their mandates.
The Court observed that the Commission’s Regulations provided that in an uncontested proceeding the hearing
board would on its own “determine whether the application and the record of the proceedings contain sufficient
information, and the review of the application by the Commission’s regulatory staff has been adequate.” The Court
held that NEPA required at least as much automatic consideration of environmental factors. In uncontested hearings,
the board did not need necessarily to go over the same ground considered in the detailed statement. But it had to
examine the statement carefully to determine whether the review by the Commission’s regulatory staff had been
adequate. And it independently had to consider the final balance among conflicting factors that was struck in the
staff’s recommendation.
The Court observed further that it may have been supposed that whenever there are serious environmental costs
overlooked or uncorrected by the staff, some party would bring them to the hearing board’s attention. However, the
Court held that it was unrealistic to assume that there would always be an intervenor with the information, energy and
money required to challenge a staff recommendation which ignored environmental costs. NEPA established environ-
mental protection as an integral part of the Commission’s basic mandate. The primary responsibility for fulfilling that
mandate lay with the Commission. Its responsibility was not simply to sit back, like an umpire, and resolve adversary
contentions at the hearing stage. Rather, it had itself to take the initiative of considering environmental values at every
distinctive and comprehensive stage of the process beyond the staff’s evaluation and recommendation.
The fourth issue dealt with the interrelationship between the environmental duties imposed on agencies under
NEPA and similar duties of environmental protection imposed on other agencies by other statutes. NEPA required a
consideration of any and all types environmental impact of federal action. But the Commission’s Rules excluded from
full consideration a wide variety of environmental issues in particular issues which had been dealt with by other
agencies. Thus, the Rules provided that no party may raise, and the Commission may not independently examine, any
problem of water quality, perhaps the most significant impact of nuclear power plants. The Commission stated that it
would defer totally to water quality standards devised and administered by state agencies and approved by the Federal
government under the Federal Water Pollution Control Act: “certification by the appropriate agency that there is
reasonable assurance that the applicant will observe standards and requirements will be considered dispositive for this
purpose.” The Commission’s Rules provided that in such circumstances it would simply include a condition in all
permits requiring compliance with water quality and other standards set by such agencies. The upshot was that the
NEPA procedures would be applied only to those environmental issues wholly unregulated by any other federal, state
or regional body.
The Court observed that NEPA mandated a case by case balancing judgement on the part of federal agencies. In
each individual case, the economic and technical benefits of planned action had to be assessed and then weighed
against the environmental costs, and alternatives had to be considered which would affect the balance of values. The
point of the individualized balancing analysis was to ensure that the optimally beneficial action was taken. The Court
held that certification by another agency that its own environmental standards were satisfied involved an entirely
different kind of judgement. Such agencies, without overall responsibility for the particular federal action in question,
attended only to one aspect of the problem: the magnitude of certain environmental costs. They simply determined
whether those costs exceeded an allowable amount. Their certification did not mean that they found no environmental
damage whatever. In fact there might be significant environmental damage, but not quite enough to violate applicable
standards. Certifying agencies did not attempt to weigh that damage against the ensuing benefits and so the balancing
analysis remained to be done. It might be that the environmental costs, though meeting prescribed standards, were
nonetheless great enough to outweigh the particular economic and technical benefits involved in the planned action.
The only agency in a position to make such a judgement was the agency with overall responsibility for the proposed
federal action. By abdicating its discretion entirely to other agencies’ certifications, the Commission neglected the
mandated balancing analysis, thereby precluding concerned members of the public from raising a wide range of
environmental issues in order to affect particular Commission decisions. The Commission had argued that the other
agencies had the special environmental expertise but the Court held that NEPA did not overlook this consideration. It
provided for full consultation with the other agencies, but it did not authorize a total abdication of discretion to the
other agencies.
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The Court observed that Federal agencies may have specific statutory duties under Acts other than NEPA to obey
particular environmental standards. Section 104 of NEPA made clear that such duties were not to be ignored: “Noth-
ing shall affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of
environmental quality (2) to coordinate or consult with any other Federal or state agency or (3) to act, or refrain from
acting contingent upon the recommendations or certification of any other Federal or state agency.” Section 104 in-
tended to ensure that the general procedural reforms achieved in NEPA did not wipe out the more specific environ-
mental controls imposed by other statutes. The Court held that the third of these obligations made the granting of a
license by the Commission contingent upon a water quality certification but it did not require the Commission to
grant a licence once a certification had been issued, nor did it preclude the Commission from demanding water
pollution controls from its licensees which were more strict than those demanded by the applicable water quality
standards of the certifying agency. Water quality certifications essentially established a minimum condition for the
granting of a licence. But that did not end the matter. The Commission could then go on to perform the very different
operation of balancing the overall benefits and costs of a particular proposed project, and considering alternations
(above and beyond the applicable water quality standards) which would further reduce environmental damage.
Sierra Club v Coleman considered the quality of the EIA report. The case arose as a result of the plan by the
Department of Transport and the Federal Highway Administration to construct the “Darien Gap Highway” through
Panama and Columbia to link the Pan American Highway system of South America with the Inter-American High-
way.
In April 1974, well after the project was underway and well after the selection of the precise route of the highway
had been made, the Federal Highway Administration (FHWA) prepared and circulated to certain parties a draft Envi-
ronmental Impact Assessment. In December 1974 it issued a final assessment. The Sierra Club and three other envi-
ronmental organizations sought to enjoin any further action on the project, claiming that the preparation and issuance
of the assessment satisfied neither the procedural nor the substantive requirements of NEPA.
The Court found that there were three deficiencies in FHWA’s compliance with the NEPA requirements. First
FHWA failed to circulate either its draft or final assessment to the Environmental Protection Agency for its com-
ments. Second, the assessment failed to discuss the problems of the transmission of aftosa, or foot and mouth disease,
the risk of which was recognized if a stringent control programme was not in place. The assessment failed to discuss
the environmental impact upon the USA of the breakdown of the aftosa control programme, should this occur. Thirdly,
the assessment failed adequately to discuss possible alternatives to the route that had been chosen. The section on the
alternative routes was devoted to an analysis of why the shorter route was preferable to the longer route from the point
of view of engineering and cost. It had no discussion of the environmental impact of possible alternatives to the route
actually selected.
The Court held that it was indispensable for the statement to discuss the relative impacts of other land routes
though they might cost more or be less feasible from the engineering perspective. The Court found that the assess-
ment was not an adequate environmental impact statement. Indeed, the Court observed, the decision to build the
highway on the chosen route had been made well before the statement was begun. The Court enjoined further work on
the project until such a time as compliance with NEPA had been effected.
In a sequel to the case, the Defendants produced a final Environmental Impact Statement for the project, and went
back to court to seek a lifting of the injunction to enable them proceed with the project. The plaintiffs contended that
the assessment was still defective and sought an extension of the injunction. The Court observed that the premise
from which any environmental impact statement had to begin was the recognition that its goal was to provide a
detailed discussion sufficient to allow the agency decision maker fully to consider the possible environmental effects
of various alternative paths the agency might choose to pursue with respect to a given project. The Court held that the
statement was still deficient and extended the injunction until the deficiencies were remedied.
Scenic Hudson Preservation Conference v Federal Power Commission dealt with the consideration of alter-
natives to the line of action proposed. The case arose from an application by the petitioners to set aside granting a
licence to construct a pumped storage hydroelectric project on the Hudson River. Under the Federal Power Act, to be
licensed by the Commission, a prospective project had to meet the statutory test of being “best adapted to a compre-
hensive plan for improving or developing a waterway.” The Commission therefore had to compare the project with
available alternatives and only grant the application if no other better adapted alternatives were available. The Court
held that, for the Commission properly to discharge its duty, the record on which it based its determination had to be
complete. In this case, the Commission had failed to compile a record which was sufficient to support its decision: it
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had ignored certain relevant factors and failed to make a thorough study of the possible alternatives to the project. The
Commission’s order was therefore set aside.
Natural Resources Defence Council v United Sates Nuclear Regulatory Commission (“Vermont Yankee”)
involved a proceeding to licence a specific nuclear reactor, the Vermont Yankee. It highlights the pitfalls inherent in
incremental licensing arrangements and the need to avoid these by comprehensive procedures.
The petitioners sought consideration of the environmental effects of that portion of the “nuclear fuel cycle”
attributable to operation of the reactor. The Appeal Board, on the other hand, held that Licensing Boards must con-
sider the environmental effects of transport of fuel to a reactor and of wastes to reprocessing plants, but need not
consider the “operations of the reprocessing plants or the disposal of wastes” in individual licensing proceedings.
The Court observed that a reactor licensing was an action requiring a detailed environmental impact statement
under the National Environmental Protection Act. The impact statement needed to consider, among other things: (i)
any adverse environmental effects which could not be avoided should the proposal be implemented, and (ii) any
irreversible and irretrievable commitment of resources which would be involved in the proposed action should it be
implemented. The Court held that this language encompassed radioactive wastes generated by the operation of a
nuclear power station. To justify its decision that reprocessing and waste disposal issues need not be considered at the
licensing stage the Appeal Board had argued that (i) these issues were too speculative, and that (ii) they were more
appropriately considered when reprocessing and waste disposal facilities were themselves licensed.
The Court noted that the Board agreed that there would be an incremental effect ultimately resulting from the
operation of the reactor as a result of the operation of whatever reprocessing and disposal grounds might from time
to time be used during the life of the plant. The Board’s opinion however was that these effects were too “contingent
and presently undefinable” to be evaluated at the time of licensing in view of the 40 year expected life of the reactor.
The Court observed that the obligation to make reasonable forecasts of the future was implicit in NEPA. Therefore an
agency could not “shirk its responsibilities under NEPA by labelling any and all discussion of future environmental
effects as ‘crystal ball inquiry’.” Further, meaningful information concerning the effects of waste reprocessing and
disposal technology was available and the possibility that improved technology might be developed during the 40
year life span of a reactor did not render consideration of environmental issues too speculative. NEPA’s requirement
for forecasting environmental consequences far into the future implied the need for predictions based on existing
technology and those developments which could be extrapolated from it. The Court held that, as more and more
reactors producing more and more wastes were brought into being, “irretrievable commitments [were] being made
and options precluded, and the agency [had to] predict the environmental consequences of its decisions as it [made]
them.”
The second argument by the Board was that licensing proceedings for reprocessing plants were a more appropri-
ate proceeding in which to weigh the environmental effects of reprocessing and waste disposal. The Court noted that
the real question posed by the Board’s opinion was whether the environmental effects of the wastes produced by a
nuclear reactor could be ignored in deciding whether to build it because they would later be considered when a plant
was proposed to deal with them. It observed that once a series of reactors were operating, it was too late to consider
whether the wastes they generated should have been produced, no matter how costly and impractical reprocessing and
waste disposal turned out to be; all that remained were engineering details to make the best of the situation which had
been created. The Court observed that NEPA’s purpose was to break the cycle of such incremental decision-making.
Further decisions to licence nuclear reactors which generated large amounts of toxic wastes were a paradigm of
“irreversible and irretrievable commitment of resources” which had to receive detailed analysis under the NEPA. The
Court held that, in the absence of effective generic proceedings to consider these issues, they had to be dealt with in
individual licensing proceedings.
This decision was overturned by the Supreme Court in Vermont Yankee Nuclear Power Corp v Natural
Resources Defence Council on the basis, among others, that, reviewing courts must not engraft their own notions of
proper procedures upon agencies.
(c) Choice of Forum
The concept of “conflicts of laws” describes the situation in which a legal dispute is governed by the laws of more
than one legal system. This can be either because the acts or omissions over which there is a dispute occurred in more
than one country or because the parties have their domicile (“country of residence”) in different countries. An exam-
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ple of such a situation is provided by the case of a multinational corporation whose domicile is in one country
(typically an industrialized country) but which carries out business activities in another (typically a non-industrialized
country) through a subsidiary. With the increasing globalization of the world economy, this phenomenon is becoming
the norm rather than the exception.
“Conflicts of laws” provides the rules for resolving such conflicts. The traditional rule is that the natural forum
(“forum conveniens”) in which a dispute should be determined is that with which it has the most real and substantial
connection. Such connecting factors include (i) factors of convenience, expense and availability of witnesses; (ii) the
law governing the relevant transaction; and (iii) where the parties reside or carry on business. In effect, unless there
are exceptional circumstances, action must be filed in the country where the transaction took place. In the example of
the multinational above, action must be filed in the non-industrialized country where the activities in question are
carried out rather than in the country of domicile of the multinational.
The concern is often expressed however that the traditional rule enables multinational and other global operators
to take advantage of the less stringent standards, weak enforcement capability and puny penalties that are character-
istic of poor countries. In the field of environmental conservation poor countries often have inadequate health and
safety and environmental standards; lack the institutional capability to monitor and enforce the standards, inadequate
as they are; and lack mechanisms for imposing appropriate penalties on offenders. The result is that environmental
degradation and damage to health and safety goes unpunished and unremedied.
In recent years it has increasingly been argued that the traditional rule of forum conveniens needs to be altered to
provide that multinational corporations may be sued in their countries of domicile for the actions or omissions of their
subsidiaries abroad. This would enable litigants in poor countries to take advantage of the high standards, strong
enforcement systems and stringent penalties in industrialized countries. Additionally, it would ensure that multina-
tionals are held to the same standards at home as abroad. This would contribute to an overall improvement in environ-
mental conservation and health and safety protection around the world.
The two cases below illustrate the trends in the jurisprudence of a number of legal systems.
1. Charan Lal Sahu v Union of India AIR 1990 Supreme Court 1480 (Bhopal Gas Disaster) (India)
2. Englebert Ngcobo & Others v Thor Chemicals Holdings Ltd & Others No 1994 N 1212 (UK) (the Thor
Chemicals case).
Charan Lal Sahu v Union of India arose out of the Bhopal Gas Disaster, which occurred on the night of 2nd
December 1984 in Bhopal, India. Toxic gas escaped from a storage tank at the Bhopal chemical plant of the Union
Carbide (I) Ltd, a subsidiary of the American multinational, Union Carbide Corporation. This killed approximately
3000 people, injured up to 30,000 people, polluted the environment and affected flora and fauna. On 7th December
1984 the Chairman of Union Carbide came to Bhopal and was arrested but later released on bail.
Between December 1984 and January 1985 suits were filed by several American lawyers in various courts in
America on behalf of several victims. Some suits were also filed before the District Court of Bhopal by individual
claimants. On 6th February 1985 all suits in various US district courts were consolidated. On 29th March the Indian
Parliament passed the Bhopal Gas Disaster (Processing of Claims) Act (1985), giving the Government the exclusive
right to pursue the claims on behalf of the victims. On 12th May 1986 the US court allowed the application of Union
Carbide on forum non conveniens on condition that Union Carbide consent to the jurisdiction of the courts in India.
On 5th September 1986 the Government filed a suit for damages in the District Court of Bhopal. On 16th Decem-
ber 1986 Union Carbide filed a written statement contending that they were not liable on the ground that they had
nothing to do with the Indian company; that they were a different legal entity; and that they never exercised any
control over the Indian subsidiary company. On 14th February 1989 the Court ordered an overall settlement of the suit
on the basis that Union Carbide would pay US$470 million to the Government of India “in full settlement of all
claims, rights and liabilities” by 31st March 1989.
In Charan Lal Sahu v Union of India certain victims of the disaster challenged the constitutional validity of the
Bhopal Gas Disaster (Processing of Claims) Act (1985). They argued that the Act took away the right of action by the
victims and wrongfully vested this in the State. They contended that the State could not act on behalf of the victims as
it was itself a joint tortfeasor, having allowed the operation of a dangerous industrial activity to proceed. The Court
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held, however, that the State was entitled to step in on grounds, inter alia, of the right of parens patrie, and protect the
rights of the victims who otherwise would have experienced great difficulty in pursuing the claims, particularly as the
victims were mostly poor, ignorant and illiterate people who would be ill equipped to pursue claims in courts in the
USA and in India.
Other victims challenged the settlement arrived at on 14th February 1989 as being too low and, in any case, as
invalid because it was agreed to without consulting the victims. In Union Carbide Corporation v Union of India &
Others AIR 1990 Supreme Court 273, the Court explained the basis of the settlement. The basic consideration moti-
vating the settlement was the compelling need for urgent relief to alleviate the suffering of the victims which had been
intense and unrelieved. Even after years of litigation basic questions of the fundamentals of the law as to liability of
Union Carbide and the quantum of damages were yet to be debated. The Court considered it a compelling duty to
secure immediate relief to the victims, and therefore facilitated a settlement. In assessing the quantum of damages
payable the Court adopted the principle that the measure of damages payable had to be correlated to the magnitude
and the capacity of the enterprise because such compensation must have a deterrent effect. But, in effecting a settle-
ment the Court did not pronounce on certain important legal questions such as principles of liability of multinationals
operating with inherently dangerous technology in developing countries as, in view of the settlement, there was no
occasion to do so.
The Court observed obiter that the Bhopal gas leak disaster emphasized the need for laying down norms and
standards that the Government ought to follow before granting licences for industries dealing with dangerous materi-
als. One condition for such licences could be the creation of a fund for payment of damages in case of an accident.
Claims from such fund would be processed through a procedure designed to cut out delay, and the basis of payment
should be fixed by statute, taking into account the nature of damage inflicted, its consequences and the ability of the
party responsible to pay, thus incorporating a punitive element.
In a separate opinion one of the judges expressed the view that a multinational corporation should be made liable
to the laws of the country in which it carries out its activities. The liability should not be restricted to the affiliate
company; the parent company should also be made liable for any damage caused. Another judge observed that the
victims had been handicapped by the fact that the immediate tortfeasor was a subsidiary of a multinational with its
Indian assets totally inadequate to satisfy the claims arising out of the disaster. The judge expressed the view that it
was necessary to ensure that (i) foreign corporations seeking to establish operations in India agreed to submit to the
jurisdiction of the courts in India in respect of tortious acts in India; (ii) liability of such a corporation was not limited
to such of its assets (or the assets of its affiliates) as may be found in India; the victims should be able to reach out to
the assets of such corporations anywhere in the world; and (iii) any decree obtained in Indian courts should be capable
of being executed against the foreign corporation, its affiliates and their assets without further procedural hurdles in
those countries.
Thus, in the Bhopal Gas Disaster case, the issue was pronounced on only obiter. The position in the next case was
more clear-cut.
In the Thor Chemicals Case temporary workers at a plant belonging to the second defendant, Thor Chemicals
South Africa (Proprietary) Ltd in Natal filed suit against their employer’s parent company in England. The South
African company was a wholly owned subsidiary of the first defendant, a UK company. The third defendant was the
Chairman of the South African company, and the Chairman and Managing Director of the UK parent company.
The South African plant manufactured and reprocessed mercury compounds. The three employees were exposed
to hazardous and unsafe quantities of mercury. The first plaintiff’s husband died and his widow brought suit on his
behalf. The second plaintiff became ill and disabled. The third defendant also died from the exposure, and his mother
sued on his behalf. None of the plaintiffs could have sued the employer, the second defendant, in South Africa because
section 7 of the South African Workmen’s Compensation Act 1941 prohibited action by an employee against his
employer for injuries sustained at work. Instead, irrespective of fault, an employee was entitled to claim workmen’s
compensation from the Commissioner who administers a workmen’s compensation fund. Each of the workmen had
been paid some compensation under this scheme. The Commissioner was empowered to pay an increased amount of
compensation if there was negligence on the part of the employer. Notwithstanding the prohibition under section 7,
section 8 expressly permitted a workman to sue a third party tortfeasor such as the defendants in South Africa in
respect of injuries sustained at work. It was accepted that an action in South Africa would lie against the defendants
for events in South Africa, and the defendants undertook that they would submit to jurisdiction in South Africa. But
the plaintiffs case was that negligence by all three defendants in England as well as in South Africa caused exposure
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to mercury, and so they had brought their claims in England against all three defendants whose domiciliary forum was
England.
The Plaintiff’s submitted that the defendants had a mercury processing plant in England with Bill Smith as the
production foreman. Between 1981 and 1987 inspectors from the Health and Safety Executive in England reported
high levels of mercury in the air and in the urine of the work force at the plant. In 1987 the plant was closed down,
having been moved in two stages in 1985 and 1987 to the South African subsidiary in Natal. All three defendants were
responsible for the research, design, set up and commissioning of the South African plant and Bill Smith was sent out
to South Africa to assist in the setting up process and in the supervision of workers. All defendants were aware of the
potential hazards to health and safety by exposure to high levels of mercury. It was Smith’s job to see to it that the
workers were aware of these hazards and to ensure (a) that safe working practices were in place; (b) that adequate and
properly maintained safety equipment was used; (c) that workers were properly trained in safety; and (d the health
and safety of workers was properly monitored. The plaintiffs submitted that the negligence of all three Defendants
caused the exposure of the three temporary workers to hazardous levels of mercury. They alleged that an unsafe
working system was transferred from England to South Africa identical to that which was known by the Defendants
to be unsafe, that all three Defendants were vicariously liable for Bill Smith’s negligence and that tortious liability
therefore existed in England. The Defendants sought stay of the proceedings on the ground that England was not an
appropriate forum, and South Africa was clearly a more appropriate forum.
The Court observed that the law on forum conveniens was that stay would only be granted where the court was
satisfied that there was some other available forum having competent jurisdiction in which the case might be tried
more suitably in the interest of all the parties and in the interest of justice. The natural forum was that with which the
action had the most real and substantial connection. Connecting factors included (i) factors of convenience, expense
and availability of witnesses; (ii) the law governing the relevant transaction; and (iii) where the parties resided or
carried on business. But the Court had to consider all the circumstances of the case, including circumstances which
went beyond those taken into account when considering connecting factors with other jurisdictions. One such factor
could be that the plaintiff would not obtain justice in the foreign jurisdiction. As to the extent to which a legitimate
personal or juridical advantage might be relevant, the mere fact that the Plaintiff had such an advantage in proceed-
ings in England could not be decisive; the fundamental principle was where the case might be tried suitably for the
interest of all the parties and for the ends of justice. Thus, damages on a higher scale, a more appropriate procedure of
discovery, a power to award interest as a general rule in England must not deter a court from granting a stay simply
because the Plaintiff would be deprived of such an advantage, provided that the court was satisfied that substantial
justice would be done in the appropriate available forum.
The Court held that the plaintiffs had evidence available to demonstrate a nexus between negligence in England
and the damage which occurred in South Africa. If a stay were granted the Plaintiffs might have difficulty in mount-
ing their case in South Africa in so far as it related to negligence in England, and there was a grave danger that justice
would not be done. On the issue of the unavailability of legal aid in South Africa, the plaintiff’s impecuniosity would
of itself not constitute a basis for refusing stay. On the basis of these factors the Court would allow the case to proceed
in England.
(d) Public Trust
Roman law developed a legal theory known as the “doctrine of public trust.” Its basis was the belief that certain
common properties such as rivers, the seashore, forests and the air were held by the State in trust for the general
public. The resources were conceived of as being owned either by no one (res nullius) or by every one in common (res
communious). The English common law adopted this doctrine. It vested ownership of common properties in the
Sovereign and stipulated that the Sovereign could not grant ownership in them to private owners if the effect of such
grant was to interfere with the public interest: the resources were held in trust by the Sovereign for the benefit of the
public. This factor distinguished common properties from general public properties which the Sovereign could grant
to private owners.
From its Roman origins, the Public Trust doctrine has become part of the law of all countries with a common law
heritage. It enjoins the Government to protect common property resources for the benefit of the general public, and
not permit their use for private purposes. Such property may not be sold or converted to other kinds of use.
The Public Trust doctrine under the English common law extended only to certain traditional uses such as navi-
gation, commerce and fishing. Subsequently the courts expanded the doctrine to cover ecologically important lands
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generally. It is now considered that the needs of environmental conservation are relevant in determining which lands,
waters, or airs are protected by the public trust doctrine. The cases below illustrate the use of the Public Trust doctrine
for environmental conservation in litigation in various countries.
1. M.C. Mehta v Kamal Nath & Others (1977) 1 SCC 388 (India)
2. In re: Human Rights Case (Environment Pollution in Balochistan) P L D 1994 Supreme Court 102 (Pakistan)
3. General Secretary West Pakistan Salt Miners Labour Union v The Director of Industries and Mineral
Development, Punjab, Lahore 1994 S C M R 2061 (Pakistan)
4. Niaz Mohammed Jan Mohammed v Commissioner of Lands & Others HCCC No 423 of 1996 (Kenya)
5. Abdikadir Sheikh Hassan v Kenya Wildlife Service HCCC No 2059 of 1996 (Kenya)
6. Commissioner of Lands v Coastal Aquaculture Ltd Civil Appeal No 252 of 1996 (Kenya)
The three cases below, from India and Pakistan respectively, illustrate the extent to which courts in those coun-
tries have gone to dispense with procedural hurdles in public interest cases in addition to illustrating reliance on the
public trust doctrine for environmental conservation. The Supreme Court of India blazed the trail. It took the view that
when any member of a public or social organization espoused the cause of the poor and the downtrodden such
member should be permitted to move the Court even by merely writing a letter without incurring expenditure of his
own. In such a case the letter was regarded as an appropriate proceeding falling within the purview of Article 32 of the
Constitution. This was the beginning of the exercise of new jurisdiction in India known as epistolary jurisdiction,
which has been followed in Pakistan and Bangladesh, the two neighbouring jurisdictions.
In M.C. Mehta v Kamal Nath & Others a news item appeared in the Indian Express stating that a private
company in which the family of Kamal Nath (former Minister for Environment and Forests) had a direct link, had
built a club on the banks of a river encroaching land including substantial forest land which was later regularized
when Kamal Nath was the Minister. It was stated that earth movers and bulldozers were used to turn the course of the
river in an effort to create a new channel by diverting the river flow, and save the club from future floods. The
Supreme Court took notice of the news item because the facts disclosed therein, if true, would be a serious act of
environmental degradation.
The Court observed that the Public Trust doctrine rested on the principle that certain resources like air, sea, waters
and the forests have such a great importance to the public as a whole that it would be wholly unjustified to make them
a subject of private ownership. The doctrine enjoined 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. The Court held that
the Government committed a breach of public trust by leasing the ecologically fragile land to the company, cancelled
the lease and ordered the restoration of the land to its original condition.
In In re: Human Rights Case (Environment Pollution in Balochistan the Supreme Court noticed a news item in a
daily newspaper to the effect that business tycoons were making attempts to purchase a coastal area of Balochistan
and convert it into a dumping ground for waste material, including nuclear waste. This would have created an environ-
mental hazard and pollution, and would violate Article 9 of the Constitution.
The Court enquired from the Chief Secretary, Balochistan whether coastal land of Balochistan or any area within
the territorial waters of Pakistan had been or was being allotted to any person or whether an application for allotment
had been made. In compliance with the notice the Chief Secretary made enquiries from various departments who
submitted reports which were forwarded to the Court. The reports showed that no plot had been allotted for dumping
nuclear waste. The Court observed that no person would apply for allotment of land for dumping nuclear or industrial
waste. This would be a clandestine act in the garb of a legal and proper business activity. The authorities were there-
fore to be vigilant and regularly check that allottees do not dump nuclear or industrial waste on the land or in the sea.
The Court made the following orders: (i) the authorities were to submit details of persons to whom land had been
allotted, (ii) if any application for allotment was made full particulars were to be supplied to the Court; and (iii) the
authorities should insert a condition in allotment letters that the allottee would not use the land for dumping nuclear
or industrial waste.
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In General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director,
Industries and Mineral Development, Punjab, Lahore the petitioners based their claim on the right to have clean
and unpolluted water. Their apprehension was that in case the miners were allowed to continue their activities, the
watercourse, reservoir and pipeline would get contaminated. The petition was filed under Article 184(3) of the Con-
stitution.
The Court observed that Article 9 of the Constitution provided that “no person shall be deprived of life or liberty
save in accordance with the law.” Further that the word “life” had been given an extended meaning and could not be
restricted to vegetative life or mere animal existence. The Court held that the right to have unpolluted water was a
right to life itself.
The Court observed that in human rights cases/public interest litigation under Article 184(3) of the Constitution,
the procedural trappings and restrictions of being aggrieved persons and other similar technical objections could not
bar the jurisdiction of the Court. The Court had vast power to investigate into questions of fact as well as independ-
ently by recording evidence, appointing Commissions or any other reasonable and legal manner to ascertain the
correct position. The Court therefore established a Commission to ascertain the position and report and granted other
remedial measures.
The Kenyan cases illustrate the use of the public trust doctrine to review the exercise of statutory powers by
public authorities.
In Niaz Mohammed Jan Mohammed v Commissioner of Lands & Others the plaintiff was the proprietor of
land in Kisauni/Nyali area within Mombasa Municipality. During the construction of the New Nyali Bridge in 1979,
a new access road to Kisauni and Nyali was constructed. This traversed certain plots of lands, among them the
plaintiff’s. The Commissioner of Lands therefore compulsorily acquired the lands under the provisions of the Land
Acquisition Act. The plaintiff thereafter enjoyed a road frontage and direct access to that road until November 1995
when the Commissioner of Lands created a new leasehold title from a portion which remained uncovered by the
tarmac road and allocated this to the third to fifth defendants. The plaintiff protested against this as an interference
with his easement rights of access to the new road and its road reserve, and an unlawful alienation of public land to
private developers. He filed suit seeking orders for a declaration that the allocation was null and void and that the land
in issue should remain a road and road reserve. He also sought temporary restraining orders against the third to fifth
defendants.
The plaintiff’s case was that he had private rights to protect which were intertwined with public rights. His private
rights arose from his position as a frontager. The portion of his land which was acquired was not acquired for any
other purpose but for construction of a road. If not all of it was used, any remaining portions comprised the remaining
road and its road reserve. Under the Local Government Act such areas were under the control of the local authority
which exercised trusteeship rights and had no right of alienation in breach of that trust.
The Court held that there was no right of compulsory acquisition of any land by the Government for purposes
other than those provided for in the Constitution. If it were not so a loophole would be created for any Government
which did not mean well for its citizens. It could compulsorily acquire land on the pretext of public good, compensate
the owners of the property acquired with taxpayers’ money and then allocate the land to those it wished. The law
required that, subsequent to the acquisition, the land must be used only for the purpose for which it was acquired. In
this instance the land had been acquired for the construction of a public road. Unutilized portions remained road
reserves. If it was found that it was unnecessary to have acquired those portions for the expressed purpose, equity
required that the portions be surrendered back to the persons from whom the land had been compulsorily acquired.
Further the road and its reserves were vested in the local authority to hold in trust for the public. Therefore neither the
Government nor the local authority could alienate it under the Government Lands Act.
In Abdikadir Sheikh Hassan v Kenya Wildlife Service the applicants sought orders restraining the defendants
from removing the hirola antelope from its natural habitat in Arawale to Tsavo National Park or any other place on the
ground that it was a gift to the people of the area and should be left there. The defendant argued against the application
on the basis that the application was seeking to curtail it from carrying out its express statutory mandate.
The Court observed that according to the common law and customary law of Kenya those entitled to the use of the
land were also entitled to its fruits which included the fauna and flora, unless these had been taken away by the law.
Under the Constitution of Kenya only minerals and oils were excluded from the ownership of those entitled to the use
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OVERVIEW
of the land. The Wildlife (Conservation and Management) Act entitled Kenya Wildlife Service to conserve the wild
animals in their natural state. It did not entitle it to translocate them. The Court held that Kenya Wildlife Service
would be acting outside its powers if it were to move any animals or plants away from their natural habitat without the
express consent of those entitled to the fruits of the earth on which the animals lived. Consequently, as the respondent
was trying to deplete through translocation the applicants’ heritage they were entitled to maintain the suit and were
entitled to an injunction.
In Commissioner of Lands v Coastal Aquaculture Ltd the Commissioner of Lands gave notice of an intention
to acquire land which belonged to Coastal Aquaculture Ltd “for “Tana River Dealt Wetlands.” A date was set for an
inquiry to hear compensation claims. The respondent objected to the notice on the basis that, among other things, it
did not state either the public body for which the acquisition was being made or the public purpose to be served by the
acquisition. The evidence at the inquiry showed that the land had been acquired for the Tana and Athi Rivers Devel-
opment Authority.
The Court held that the notice should have specified that the Tana and Athi Rivers Development Authority was the
public body for which the land was being acquired. Simply stating in the public notice that the Government intended
to acquire the land for “Tana and Athi River Development Wetlands” and which gave the impression that it was a
public body is not good enough, being neither a public body nor a public benefit.
(e) The Precautionary Principle
The United Nations Conference on Environment and Development which was held in Rio de Janeiro, Brazil in
June 1992 marked an important milestone in the development of the law on environmental conservation. Among the
important documents adopted at Rio was the Rio Declaration of Environment and Development. This is a set of 27
principles which States are urged to adopt in order to integrate environmental conservation in their development
programmes. It is not a legally binding document. However, it sets standards for States to follow and falls under the
category of “soft law.”
Principle 15 deals with the concept of precaution. It states that:
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 certainty shall not be
used as a reason for postponing cost effective measures to prevent environmental degradation.
Along with the Polluter Pays Principle, Principle 16, The Precautionary Principle quickly became one of the most
frequently cited of the Rio principles. The cases that follow illustrate the way in which courts around the world have
dealt with the issue of precaution in the context of litigation.
1. R v Secretary of State for Trade and Industry ex parte Duddridge Journal of Environmental Law vol. 7 No
2, 224 (UK)
2. Shehla Zia v WAPDA P L D 1994 Supreme Court 693 (Pakistan)
3. Greenpeace Australia Ltd v Redbank Power Company Pty Ltd & Singleton Council (1995) 86 LGERA 143
(Australia)
4. Nicholls v Director General of National Parks and Wildlife 1994 84 LGERA 397 (Australia)
5. Leatch v National Parks & Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 (Australia)
R v Secretary of State for Trade and Industry ex parte Duddridge was an application for judicial review of
the decision of the Secretary of State for Trade and Industry whereby he declined to issue regulations to the National
Grid Company plc and/or other licence holders under the Electricity Act 1989 so as to restrict the electromagnetic
fields from electric cables which were being laid as part of the national grid. The application was brought on behalf of
three children who lived in an area where the National Grid Company was then laying a new high voltage under-
ground cable. The applicants alleged that non-ionizing radiation which would be emitted from the new cables when
commissioned and would enter their homes and schools, would be of such a level as might expose them to a risk of
developing leukaemia. They argued that the Secretary of State should issue regulations which would remove any
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such risk by requiring that the electromagnetic fields do not exceed a stipulated level or some other level at which, on
current research, there was no evidence to suggest or otherwise hypothesize any possible risk to the health of those
exposed to such fields.
The applicants argued that, in considering the issue whether there existed any danger or risks of personal injury
from electromagnetic fields (EMFs) the Secretary of State had approached the matter in the wrong way; he had asked
himself whether there was any evidence that such exposure does in fact give rise to a risk of childhood leukaemia.
Because the scientific evidence did not establish that there was such a risk he concluded that he needed not use his
power to regulate EMFs. They submitted that the proper approach would have been to ask himself whether there was
any evidence of a possible risk even though the scientific evidence was presently unclear. This would have pitched the
threshold for action at a lower level of scientific proof and the answer would have been yes, and he would have been
obliged to make regulations.
The basis of the applicants’ argument in favour of the lower threshold of scientific proof was that the Secretary of
State was obliged to apply the precautionary principle when considering whether to take action for the protection of
human health. That principle required that precautionary action be taken where the mere possibility existed of a risk
of serious harm to the environment or to human health. Where this possible risk existed, a cost-benefit analysis had to
be undertaken so as to determine what action would be appropriate. An application of the principle in this case would
have required that the Secretary of State conduct a cost benefit analysis to ascertain what action could be taken and at
what cost so as to reduce any possible risk to health from exposure to EMFs. This would have had to be done even
though the scientific evidence did not show that the risk to health actually existed. The Secretary of State had not done
this and, say the applicants, this failure vitiated the exercise of his discretion.
The Secretary of State argued that he was under no obligation to apply the precautionary principle under EC or
other law. The applicants accepted that unless the Secretary of State was bound to apply the precautionary principle,
his acceptance of the advise that there was no basis on which to restrict human exposure to EMFs and the consequent
exercise of his discretion to decline to issue regulations could not be impugned by judicial review.
The Court accepted that, if the Secretary of State was shown to be under a legal obligation to apply the precau-
tionary principle to legislation concerned with health and the environment, the possibility of harm raised by the
existing state of scientific knowledge was such as to oblige him to apply it in considering whether to issue regulations
to restrict exposure to EMFs. He would be obliged to conduct the cost-benefit analysis necessary for the proper
application of the principle. The Court held that Community law did not impose upon member states an immediate
obligation to apply the precautionary principle in considering legislation relating to the environment or human health.
Therefore the applicants had failed to show any ground for impugning the Secretary of State’s decision not to issue
regulations.
Similarly, in Shehla Zia v WAPDA citizens having apprehension against construction of a grid station in a
residential area sent a letter to the Supreme Court for consideration as a human rights case. Considering the gravity of
the matter which might involve and affect the life and health of the citizens at large, notice was issued to the Authority
(WAPDA).
The Court noted that there was a trend in support of the fact that there might be a likelihood of adverse effects of
electro-magnetic fields on human health. It held that as there was a state of uncertainty the authorities should observe
the rules of prudence and precaution. The rule of prudence was to adopt measures which might avert the danger if it
were to occur. The rule of precaution was first to consider the welfare and safety of the human beings and the environ-
ment and then to pick up a policy and execute the plan which was more suited to obviate the possible danger or take
such alternate precautionary measures which might ensure safety. To stick to a particular plan on the basis of old
studies or inconclusive research could not be said to be a policy of prudence and precaution.
The Court therefore appointed a Commissioner to examine and study the scheme, planning device and technique
employed by the Authority and report whether there was any likelihood of any hazard or adverse effect on the health
of the residents of the locality. The Commissioner might also suggest a variation in the plan to minimize the danger.
Greenpeace Australia v Redbank Power Company Pty Ltd & Singleton Council raised the applicability of
the precautionary principle in the context of the obligations under Climate Change Convention. As in the Duddridge
case the attempt to apply the precautionary principle failed to persuade the Court that the decision of the public
authority should be reviewed.
xxxvi
BACKGROUND
OVERVIEW
In March 1994 Singleton Council granted to Redbank Power Company development consent for the construction
of a power station and ancillary facilities. Greenpeace Australia Ltd objected contending that the impact of air emis-
sions from the project would unacceptably exacerbate the greenhouse effect and that the Court should apply the
precautionary principle and refuse development consent for the proposal.
The Court observed that the evidence established that the project would emit carbon dioxide, a greenhouse gas,
an issue which Greenpeace contended should outweigh all other factors to be taken into account in the assessment of
the project, and should lead to the refusal of the consent. The Court observed however that the relevant policy docu-
ments stopped short of prohibiting energy development which could emit greenhouse gases. Further there was uncer-
tainty in the evidence about the effect of carbon dioxide emission from this project. Although it would emit carbon
dioxide, the impact that would have on global warming was very uncertain. Greenpeace’s contention was that scien-
tific uncertainty should not be used as a reason for ignoring the environmental impact of carbon dioxide emission; the
Court should take into account the precautionary principle. But the court held that the application of the precautionary
principle dictated that a cautious approach should be adopted in evaluating the various relevant factors in determining
whether to give consent; it did not require that the greenhouse issue should outweigh all other issues.
Similarly, in Nicholls v Director General of National Parks and Wildlife the applicant appealed against the
decision of the Director General to grant a licence to the Forestry Commission to “take or kill” any protected fauna in
the course of carrying out forestry operations within a specified area. The applicant’s case was directed against
alleged imperfections in the fauna impact statement. The Court held that the fauna impact statement was only one of
a number of tools to be used in determining whether or not a general licence should be issued, and the applicant’s
attack failed to take account of the ongoing opportunities for inspection, survey and assessment which could lead to
responsive changes to the conditions of the licence.
Further the applicant argued that the Court was obliged, as a matter of law, to take into account Australia’s
international obligations, i.e the precautionary approach. However the Court held that the precautionary principle was
not framed as a legal standard.
Leatch v National Parks & Wildlife Service was an instance in which the application of the precautionary
principle resulted in a review of the public authority’s decision. In this case, Shoalhaven City Council applied to the
Director General of the National Parks and Wildlife Service for a licence to “take or kill” endangered fauna. The need
for the licence arose from the granting of development consent by the Council to itself for the construction of a link
road. The licence application was supported by a fauna impact statement pursuant to s.92B of the National Parks and
Wildlife Act. The Director General granted the licence. An objector, May Leatch, appealed submitting that there had
been a failure to include “to the fullest extent reasonably practicable” a description of the fauna affected by the
actions. She argued further that the precautionary principle should be applied.
The Court observed that the precautionary principle was a statement of common sense and had already been
applied by decision makers in appropriate circumstances prior to the principle being spelt out. The Court held that,
while there was no express provision requiring consideration of the precautionary principle, consideration of the state
of knowledge or uncertainty regarding a species, the potential for serious or irreversible harm to an endangered fauna
and the adoption of a cautious approach in protection of endangered fauna was consistent with the subject matter,
scope and purposes of the Act. The application of the precautionary principle was the most apt in a situation of a
scarcity of scientific knowledge of species population, habitat and impacts, which was the case in this instance.
Accordingly, the licence should not be granted until much more was known.
The Polluter Pays Principle/Liability for Environmental Damage
Like the Precautionary Principle, the Polluter Pays Principle has been enshrined in the Rio Declaration on Envi-
ronment and Development as Principle 16. It states as follows:
National authorities should endeavour to promote the internalization of environmental costs and the use of eco-
nomic instruments, taking into account that the polluter should, in principle bear the costs of pollution, with due
regard to the public interest and without distorting international trade and investment.
The Polluter Pays Principle addresses liability for environmental damage. It is aimed at ensuring that persons
engaged in potentially polluting activities internalize the environmental costs of their activities and put in place
xxxvii
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO ENVIRONMENT/ NATIONAL D ECISIONS V OLUME I
preventive measures. The Polluter Pays Principle is given effect in the civil law causes of action of trespass, nuisance,
the rule in Rylands v Fletcher and negligence which define the nature and extent of the polluter’s liability.
The cases that follow are instances of the use of the concept of the polluter pays principle to allocate liability for
environmental damage. The first case deals with the question, in a given set of circumstances “who is the polluter?”,
while the second defines the extent of liability of the polluter.
1. Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (South Africa)
2. Indian Council for Enviro-Legal Action v Union of India & Others (1996) 3 SCC 212 (India)
Natal Fresh Produce Growers Association v Agroserve (Pty) Ltd deals with the problem of causation, a key
element in imposing liability. The plaintiffs instituted action for an order interdicting the defendants from manufac-
turing and/or distributing in South Africa hormonal herbicides. The first plaintiff was the Natal Fresh Produce Grow-
ers Association one of whose objects was the “promotion and protection of the interests of growers of all kinds of
fresh produce.” The second and third plaintiffs were farmers who grew fresh produce in an area within and adjoining
the place generally known as Tala Valley, Natal. The defendants were registered manufacturers and/or distributors of
certain hormonal herbicides.
The plaintiffs alleged that hormonal herbicides used within South Africa were transported through water and air
and deposited on fresh produce growing within Natal. They alleged that this had damaged and would continue to
damage plants grown and owned by the plaintiffs. Further that the damage flowed as a result of the distribution and
consequent use of the herbicides and that the use was caused, accommodated and encouraged by the manufacture and
distribution of the herbicides for use within South Africa. The plaintiffs argued that the damage could not be pre-
vented except by the elimination of the use of these herbicides within South Africa.
The defendants pointed out that they did no more than manufacture and distribute hormonal herbicides which
were duly registered for sale under the relevant laws. These activities were lawful and the manufactured products
were capable of perfectly lawful use. They submitted that the lawful manufacture and distribution of these products
was not rendered wrongful by the fact that they were used to the detriment of the plaintiff farmers by third parties for
whose conduct the defendants were not legally responsible.
The Court held that it could not be the case that any use of hormonal herbicides anywhere in South Africa resulted
in damage to fresh produce in Tala Valley. Further, the allegation that the use of hormonal herbicides was caused,
accommodated and encouraged by their manufacture and distribution was not warranted by the facts. By manufactur-
ing and distributing their products the defendants facilitated or accommodated the use of hormonal herbicides by
others, but that did not amount to procuring, instigating or encouraging such use so as to make them legally responsi-
ble for the actions of the users. The facts did not warrant the conclusion that the manufacture and distribution of
hormonal herbicides caused the use of such herbicides by others, in the sense that the manufacturers were legally
responsible for such use. The only connection between the activities of the defendants and the damage producing use
of hormonal herbicides by others was that the manufacture and distribution of hormonal herbicides facilitated such
use. But that was not enough to saddle the manufacturers with legal responsibility for the conduct of the users.
The second case deals with the nature and extent of the polluter’s liability for environmental damage. The Court
in this case went further than the traditional rule in Rylands v Fletcher, which is applied in most other jurisdictions,
in defining the nature and extent of a polluter’s liability.
In Indian Council for Enviro-Legal Action v Union of India the respondents operated chemical factories
without the requisite licences and had not installed equipment for treatment of highly toxic effluent which they
discharged. The discharges polluted water aquifers and the soil. An environmental organization filed a petition by
way social action litigation on behalf of the villagers whose right to life had been infringed by the respondents’ action.
The Court observed that according to the rule laid down by the Constitution Bench of the Supreme Court in
Oleum Gas Leak Case once the activity carried on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his activity irrespective of whether he took
reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. In
the words of the Constitution Bench, such an activity “... can be tolerated only on condition that the enterprise en-
xxxviii
BACKGROUND
OVERVIEW
gaged in such hazardous or inherently dangerous activity indemnify 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.” The Consti-
tutional Court assigned the reason for stating the law in those terms to be that the enterprise alone has the resources to
discover and guard against the hazards, and not the person affected, and the practical difficulty on the part of the
person affected in establishing the absence of reasonable care or that the damage to him was foreseeable by the
enterprise. The Bench also observed that 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 - apart from proof of damage to the
plaintiff by the act or negligence of the defendant - these are foreseeability and non-natural use of land.
The Court observed that the question of liability of the respondents to defray the costs of remedial measures
could also be looked at from another angle, viz., the Polluter Pays Principle, according to which the responsibility for
repairing the damage was that of the offending industry. The Court held that the respondents were absolutely liable to
compensate for the harm caused by them to the villagers in the affected area, to the soil and to the underground water,
and hence they were bound to take all necessary measures to remove the sludge and other pollutants lying in the
affected area, and also to defray the cost of the remedial measures required to restore the soils and underground water
sources.
Riparian Right to Water
The doctrine of riparian rights to water has already been discussed. The following two cases illustrate the use of
this doctrine for water protection.
1. M.C. Mehta v Union of India AIR 1988 Supreme Court 1115 (India)
2 Nairobi Golf Hotels (Kenya) Ltd v Pelican Engineering and Construction Co. Ltd HCCC No 706 of 1997
In M.C. Mehta v Union of India, the city of Kanpur Nagar Mahapalika had a statutory obligation to collect and
remove sewage, maintain waterworks and guard against pollution of water used for human consumption. The city
discharged its sewage into the river without treatment. The petitioner filed a petition for the prevention of nuisance
caused by the pollution of the river.
The Court observed that under the common law a municipal corporation could be restrained by an injunction in
an action brought by a riparian owner who had suffered on account of the pollution of the water caused by the
discharge into the river of insufficiently treated sewage. In this instance the petitioner was not a riparian owner. He
was “a person interested in protecting the lives of the people who make use of the river water.” The Court held that he
had a right to maintain the petition. The nuisance caused by the river pollution was a public nuisance, and it would not
be reasonable to expect any particular person to take proceedings to stop it. The petition was therefore entertained as
a public interest litigation. The Court held that the Petitioner was entitled to move the Court in order to enforce the
statutory provisions which imposed duties on the municipal authorities.
In Nairobi Golf Hotels (Kenya) Ltd v Pelican Engineering and Construction Co. Ltd the plaintiff filed a suit
against the defendant claiming damages and a permanent injunction to restrain the defendant from constructing a dam
across a river and from trespassing on the plaintiff’s land. The plaintiff based its suit on its ownership of land along
whose boundary was a river from which, with the permission of the Water Apportionment Board, it abstracted water
for use on its property. The defendant’s land did not border the river but it proceeded to erect a dam on the river for
use to irrigate his land. The Defendant argued that, as under the relevant statute water was vested in the Government,
the plaintiff had no locus standi to bring the suit.
The Court held that under the common law a riparian owner had a right to take a reasonable amount of water from
the river as it flowed past his land for domestic use. The plaintiff, by virtue of being a riparian owner, could apply for
an injunction under the common law to restrain the defendant from using water for irrigation purposes.
xxxix
Section 1
Locus Standi
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
2
SIERRA CLUB, PETITIONER,
v.
ROGERS C.B. MORTON, INDIVIDUALLY, AND AS
SECRETARY OF THE INTERIOR OF THE
UNITED STATES, ET AL.
No. 70-34
Argued Nov. 17, 1971
Decided April 19, 1972
Action by membership corporation for declaratory judge- personal stake in the outcome of the controversy as to
ment that construction of proposed ski resort and recrea- ensure that dispute sought to be adjudicated will be pre-
tion area in national game refuge and forest would con- sented in an adversary context and in a form historically
travene federal laws and for preliminary and permanent viewed as capable of judicial resolution.
injunctions restraining federal officials from approving
or issuing permits for the project. The United States 3. Administrative Law and Procedure - 65
District Court for the Northern District of California
granted a preliminary injunction and the defendants ap- Where Congress has authorized public officials to per-
pealed. The United States Court of Appeals, Ninth Cir- form certain functions according to law and has provided
cuit, 433 F.2d 24, vacated the injunction and remanded by statute for judicial review of those actions under cer-
the cause with directions, and certiorari was granted. The tain circumstances, inquiry as to standing must begin with
Supreme Court, Mr. Justice Stewart, held that, in absence determination of whether statute in question authorizes
of allegation that corporation or its members would be review at behest of the plaintiff.
affected in any of their activities or pastimes by the pro-
posed project, the corporation, which claimed special 4. Constitutional Law - 55, 56
interest in conservation of natural game refuges and for-
ests, lacked standing under Administrative Procedure Act Congress may not confer jurisdiction on federal courts
to maintain the action. to render advisory opinions, to entertain friendly suits or
to resolve political questions, because suits of that char-
Affirmed. acter are inconsistent with judicial function under the
Constitution, but where dispute is otherwise justiciable,
Mr. Justice Douglas, Mr. Justice Brennan and Mr. Jus- question whether litigant is proper party to request an
tice Blackmun filed dissenting opinions. adjudication of particular issue is one within power of
Congress to determine. U.S.C.A. Const. art. 3 § 1 et
Mr. Justice Powell and Mr. Justice Rehnquist took no seq.
part in consideration or decision of the case.
5. Administrative Law and Procedure - 668
1. Action - 13
“Injury in fact” test for standing to sue under Adminis-
“Standing to sue” means that party has sufficient stake trative Procedure Act requires more than injury to cog-
in an otherwise justiciable controversy to obtain judicial nizable interest and requires that party seeking review
resolution of that controversy. be himself among the injured. 5 U.S.C.A. § 702 .
See publication Words and Phrases for other judicial 6. Administrative Law and Procedure - 668
constructions and definitions.
Fact of economic injury is what gives a person standing
2. Action - 13 to seek judicial review under a statute authorizing re-
view of federal agency action, but once review is prop-
Where party does not rely on any specific statute author- erly invoked, that person may argue the public interest
izing invocation of judicial process, question of his stand- in support of his claim that agency has failed to comply
ing to sue depends upon whether he has alleged such a with its statutory mandate.
3
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
7. Administrative Law and Procedure - 665 national parks, game refuges, and forests of the coun-
try”, brought this suit for a declaratory judgement and
Organization may represent its injured members in pro- an injunction to restrain federal officials from approving
ceeding for judicial review. an extensive skiing development in the Mineral King
Valley in the Sequoia National Forest. Petitioner relies
8. Administrative Law and Procedure - 668 on § 10 of the Administrative Procedure Act, which ac-
cords judicial review to a “person suffering legal wrong
Organization’s mere interest in a problem, no matter how because of agency action, or [who is] adversely affected
long standing the interest and no matter how qualified the or aggrieved by agency action within the meaning of a
organization is in evaluating the problem, is not sufficient relevant statute.” On the theory that this was a “public”
by itself to render the organization “adversely affected” action involving questions as to the use of natural re-
or “aggrieved” within Administrative Procedure Act pro- sources. The Court of Appeals reversed, holding that
viding judicial review for person who suffers legal wrong the club lacked standing, and had not shown irreparable
because of agency action, or who is adversely affected or injury.
aggrieved by agency action. 5 U.S.C.A. § 702.
*The syllabus constitutes no part of the opinion of the
See publication Words and Phrases for other judicial Court but has been prepared by the Reporter of Deci-
constructions and definitions. sions for the convenience of the reader. See United States
v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26
9. Administrative Law and Procedure - 668 S.Ct. 282, 287, 50 L.Ed. 499.
Requirement that party seeking judicial review of ad- Leland R. Selna, Jr., San Francisco, Cal., for petitioner.
ministrative agency’s action must allege facts showing
that he is himself adversely affected does not insulate Sol Gen. Erwin N. Griswold, for respondents.
executive action from judicial review, nor does it pre-
vent any public interests from being protected through Mr. Justice STEWART delivered the opinion of the Court.
judicial process, but serves as a rough attempt to put de-
cision as to whether review will be sought in the hands The Mineral King Valley is an area of great natural beauty
of those who have a direct stake in the outcome. 5 nestled in the Sierra Nevada Mountains in Tulare County,
U.S.C.A. § 702. California, adjacent to Sequoia National Park. It has been
part of the Sequoia National Forest since 1926, and is
10. Administrative Law and Procedure - 665 designated as a national game refuge by special Act of
Congress 1
Organizations or individuals are not entitled to vindicate
their own value preferences through judicial process. Though once the site of extensive mining activity, Min-
eral King is now used almost exclusively for recreational
11. Administrative Law and Procedure - 668 purposes. Its relative inaccessibility and lack of devel-
opment have limited the number of visitors each year,
Declatory Judgement - 292 and at the same time have preserved the valley’s quality
as a quasi-wilderness area largely uncluttered by the prod-
In absence of allegation that membership corporation or ucts of civilization.
its members would be affected in any of their activities
or pastimes by proposed ski resort and recreation area in The United States Forest Service, which is entrusted with
national game refuge and forest, the corporation, which the maintenance and administration of national forests,
claimed special interest in conservation of natural game began in the late 1940’s to give consideration to Mineral
refuges and forests, lacked standing under Administra- King as a potential site for recreational development.
tive Procedure Act to maintain action for injunctive re- Prodded by a rapidly increasing demand for skiing fa-
lief and declaratory judgement that the proposed devel- cilities, the Forest Service published a prospectus in 1965,
opment would contravene federal laws. 5 U.S.C.A. §§ inviting bids from private developers for the construc-
1, 41, 43, 45c, 497, 688; Fed. Rules Civ. Proc. rule 15, tion and operation of a ski resort that would also serve as
28 U.S.C.A. a summer recreation area. The proposal of Walt Disney
Enterprises, Inc., was chosen from those of six bidders,
Syllabus* and Disney received a three-year permit to conduct sur-
veys and explorations in the valley in connection with
Petitioner, a membership corporation with “a special in- its preparation of a complete master plan for the resort.
terest in the conservation and sound maintenance of the
1
Act of July 3, 1926 § 6, 44 Stat. 821, 16 U.S.C. § 688.
4
SIERRA CLUB V MORTON
The final Disney plan, approved by the Forest Service in ficiently substantial and serious to justify a preliminary
january 1969, outlines a $35 million complex of motels, injunction....” The respondents appealed, and the Court
restaurants, swimming pools, parking lots, and other of Appeals for the Ninth Circuit reversed. 433 F.2d 24.
structures designed to accommodate 14,000 visitors daily. With respect to the petitioner’s standing, the court noted
This complex is to be constructed on 80 acres of the val- that there was “no allegation in the complaint that mem-
ley floor under a 30-year use permit from the Forest Serv- bers of the Sierra Club would be affected by the actions
ice. Other facilities, including ski lifts, ski trails, a cog- of [the respondents] other than the fact that the actions
assisted railway, and utility installations, are to be con- are personally displeasing or distasteful to them,” id., at
structed on the mountain slopes and in other parts of the 33, and concluded:
valley under a revocable special-use permit. To provide
access to the resort, the State of California proposes to “We do not believe such club concern without a show-
construct a highway 20 miles in length. A section of this ing of more direct interest can constitute standing in the
road would traverse Sequoia National Park, as would a legal sense sufficient to challenge the exercise of respon-
proposed high-voltage power line needed to provide elec- sibilities on behalf of all the citizens by two cabinet level
tricity for the resort. Both the highway and the power officials of the government acting under Congressional
line require the approval of the Department of the Inte- and Constitutional authority.” Id., at 30.
rior, which is entrusted with the preservation and main-
tenance of the national parks. Alternatively, the Court of Appeals held that the Sierra
Club had not made an adequate showing of irreparable
Representatives of the Sierra club, who favor maintain- injury and likelihood of success on the merits to justify
ing Mineral King largely in its present state, followed issuance of a preliminary injunction. The court thus va-
the progress of recreational planning for the valley with cated the injunction. The Sierra Club filed a petition for
close attention and increasing dismay. They unsuccess- a writ of certiorari which we granted, 401 UY.S. 907, 91
fully sought a public hearing on the proposed develop- S.Ct. 870, 27 L.Ed.2d 805, to review the questions of
ment in 1965, and in subsequent correspondence with federal law presented.
officials of the Forest Service and the Department of the
Interior, they expressed the Club’s objections to Disney’s
plan as a whole and to particular features included in it. II
In June 1969 the Club filed the present suit in the United
States District of California, seeking a declaratory judge- [1-4] The first question presented is whether the Sierra
ment that various aspects of the proposed development Club has alleged facts that entitle it to obtain judicial
contravene federal laws and regulations governing the review of the challenged action. Whether a party has a
preservation of national parks, forests, and game refuges2 sufficient stake in an otherwise justiciable controversy
and also seeking preliminary and permanent injunctions to obtain judicial resolution of that controversy is what
restraining the federal officials involved from granting has traditionally been referred to as the question of stand-
their approval or issuing permits in connection with the ing to sue. Where the party does not rely on any specific
Mineral King project. The petitioner Sierra Club sued statute authorizing invocation of the judicial process, the
as a membership corporation with “a special interest in question of standing depends upon whether the party has
the conservation and the sound maintenance of the na- alleged such a “personal stake in the outcome of the con-
tional parks, game refuges and forests of the country,” troversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691,
and invoked the judicial-review provisions of the Ad- 703, 7 L.Ed.2d 663, as to ensure that “the dispute sought
ministrative Procedure Act, 5 U.S.C. § 701 et seq. to be adjudicated will be presented in an adversary con-
text and in a form historically viewed as capable of judi-
After two days of hearings, the District Court granted cial resolution.” Flast v. Cohen, 392 U.S. 83, 101, 88
the requested preliminary injunction. It rejected the re- S.Ct. 2942, 1953, 20 L.Ed.2d 947. Where, however,
spondents’ challenge to the Sierra Club’s standing to sue, Congress has authorized public officials to perform cer-
and determined that the hearing had raised questions tain functions according to law, and has provided by stat-
“concerning possible excess of statutory authority, suf- ute for judicial review of those actions under certain cir-
2
As analyzed by the District Court, the complain alleged violations of law falling into four categories. First, it claimed that the special-use permit
for construction of the resort exceeded the maximum-acreage limitation placed upon such permits by 16 U.S.C. § 497, and that issuance of a
“revocable” use permit was beyond the authority of the Forest Service. Second, it challenged the proposed permit for the highway through
Sequoia National Park on the grounds that the highway would not serve any of the purposes of the park, in alleged violation of 16 U.S.C. § 1, and
that it would destroy timber and other natural resources protected by 16 U.S.C. §§ 41 and 43. Third, it claimed that the Forest Service and the
Department of the Interior had violated their own regulations by failing to hold adequate public hearings on the proposed project. Finally, the
complaint asserted that 16 U.S.C. § 45c requires specific congressional authorization of a permit for construction of a power transmission line
within the limits of a national park.
5
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
cumstances, the inquiry as to standing must begin with a been recognized as sufficient to lay the basis for stand-
determination of whether the statute in question author- ing, with or without a specific statutory provision for
izes review at the behest of the plaintiff.3 judicial review.6 Thus, neither Data Processing nor
Barlow addressed itself to the question, which has arisen
The Sierra Club relies upon § 10 of the Administrative with increasing frequency in federal courts in recent
Procedure Act (APA), 5 U.S.C. § 702, which provides: years, as to what must be alleged by persons who claim
injury of a non economic nature to interests that are
“A person suffering legal wrong because of agency ac- widely shared. 7 That question is presented in this case.
tion, or adversely affected or aggrieved by agency ac-
tion within the meaning of a relevant statute, is entitled
to judicial review thereof.” III
Early decisions under this statute interpreted the language [5] The injury alleged by the Sierra Club will be in-
as adopting the various formulations of “legal interest” curred entirely by reason of the change in the uses to
and “legal wrong” then prevailing as constitutional re- which Mineral King will be put, and the attendant change
quirements of standing.4 But, in Association of Data in the aesthetics and ecology of the area. Thus, in refer-
Processing Service Organizations, Inc. v. Camp, 397 U.S. ring to the road to be built through Sequoia National Park,
150, 90 S.Ct. 827, 25 L.Ed.2d 184, and Barlow v. Collins, the complaint alleged that the development “would de-
397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, decided the stroy or otherwise adversely affect the scenery, natural
same day, we held more broadly that persons had stand- and historic objects and wildlife of the park and would
ing to obtain judicial review of federal agency action impair the enjoyment of the park for future generations.”
under § 10 of the APA where they had alleged that the We do not question that this type of harm may amount to
challenged action had caused them “injury was to an in- an “injury in fact” sufficient to lay the basis for standing
terest “arguably within the zone of interests to be pro- under § 10 of the APA. Aesthetic and environmental
tected or regulated” by the statutes that the agencies were well-being, like economic well-being, are important in-
claimed to have violated 5 gredients of the quality of life in our society, and the fact
that particular environmental interests are shared by the
In Data Processing, the injury claimed by the petition- many rather than the few does not make them less de-
ers consisted of harm to their competitive position in the serving of legal protection through the judicial process.
computer-servicing market through a ruling by the Comp- But the “injury in fact” test requires more than an injury
troller of the Currency that national banks might per- to a cognizable interest. It requires that the party seek-
form data-processing services for their customers. In ing review be himself among the injured.
Barlow, the petitioners were tenant farmers who claimed
that certain regulations of the Secretary of Agriculture The Club apparently regarded any allegations of indi-
adversely affected their economic position vis-à-vis their vidualized injury as superfluous, on the theory that this
landlords. These palpable economic injuries have long was a “public” action involving questions as to the use
3
Congress may not confer jurisdiction on Art. III federal courts to render advisory opinions. Muskrat v. United States. 219 U.S. 346. 31 S.Ct.
450, 55 L.Ed. 246, or to entertain “friendly” suits. United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413, or to resolve “political
questions,” Luther v. Borden. 7 How, 1, 12 L.Ed. 581, because suites of this character are inconsistent with the judicial function under Art. III.
But where a dispute is otherwise justiciable, the question whether the litigant is a “proper party to request an adjudication of a particular issue,”
Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, is one within the power of Congress to determine. C.f. FCCC v. Sanders
Bros. Radio Station, 309 U.S. 470, 477, 60 S.Ct. 693, 698, 84 L.Ed. 869: Flast v. Cohen, supra, 392 U.S., at 120, 88 s.Ct., at 1963 (Harlan, J.,
dissenting); Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694, 704. See generally Berger, Standing to Sue in Public Actions:
Is it a Constitutional Requirement?, 78 Yale L.J. 816, 827 et seq. (1969); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or
Ideological Plaintiff, 116 U.Pa. L.Rev. 1033 (1968).
4
See, e.g., Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 173, 281, 225 F.2d 924, 932; Ove Gustavsson Contracting Co. v.
Floete, 2 Cir., 278 F.2d 912, 914; Duba v. Schuetzle, 8 Cir., 303 F.2d 570, 574. The theory of a “legal interest” is expresed in its extreme form in
Alabama Power Co. v. Ickes, 302 U.S. 464, 479-481, 58 S.Ct. 300, 303-304, 82 L.Ed. 374. See also Tennessee Electric Power Co. v. TVA, 306
U.S. 118, 137-139, 59 S.Ct. 366, 369-370, 83 L.Ed. 543.
5
In deciding this case we do not reach any questions concerning the meaning of the “zone of interests” test or its possible application to the
facts here presented.
6
See, e.g., Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7, 88 S.Ct. 651, 655, 19 L.Ed.2d 787; Chicago v. Atchison, T. & S.F.R. Co., 357 U.S.
77, 83, 78 S.Ct. 1063, 1067, 2 L.Ed.2d 1174; FCC v. Sanders Bros. Radio Stationa, supra, 309 U. S., at 477, 60 S.Ct., at 698.
7
No question of standing was raised in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136. The
complaint in that case alleged that the organizational plaintiff represented members who were “residents of Memphis, Tennessee who use
Overton Park as a park land and recreation area and who have been active sing 1964 in efforts to preserve and protect Overton park as a park land
and recreation area.”
6
SIERRA CLUB V MORTON
of natural resources, and that the Club’s longstanding [6] Taken together, Sanders and Scripps-Howard thus
concern with and expertise in such matters were suffi- established a dual proposition: the fact of economic in-
cient to give it standing as a “representative of the pub- jury is what gives a person standing to seek judicial re-
lic.”8 This theory reflects a misunderstanding of our cases view under the statute, but once review is properly in-
involving so-called “public actions” in the area of ad- voked, that person may argue the public interest in sup-
ministrative law. port of his claim that the agency has failed to comply
with its statutory mandate. 11 It was in the latter sense
The origin of the theory advanced by the Sierra Club that the “standing” of the appellant in Scripps-Howard
may be traced to a dictum in Scripps-Howard Radio v. existed only as a “representative of the public interest.”
FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229, in which It is in a similar sense that we have used the phrase “pri-
the licensee of a radio station in Cincinnati, Ohio, sought vate attorney general” to describe the function performed
a stay of an order of the FCC allowing another radio by persons upon whom Congress has conferred the right
station in a nearby city to change its frequency and in- to seek judicial review of agency action. See Data
crease its range. In discussing its power to grant a stay, Processing, supra, 397 U.S., at 154, 90 S.Ct., at 830.
the Court noted that “these private litigants have stand-
ing only as representatives of the public interest.” Id., at The trend of cases arising under the APA and other stat-
14, 62 S.Ct., at 882. But that observation did not de- utes authorizing judicial review of federal agency action
scribe the basis upon which the appellant was allowed to has been toward recognizing that injuries other than eco-
obtain judicial review as a “person aggrieved” within the nomic harm are sufficient to bring a person within the
meaning of the statute involved in that case, 9 since meaning of the statutory language, and toward discard-
Scripps-Howard was clearly “aggrieved” by reason of ing the notion that an injury that is widely shared is ipso
the economic injury that it would suffer as a result of the facto not an injury sufficient to provide the basis for ju-
Commission’s action. 10 The Court’s statement was, dicial review.12 We noted this development with approval
rather, directed to the theory upon which Congress had in Data Processing, 397 U.S., at 154, 90 S.Ct., at 830, in
authorized judicial review of the Commission’s actions. saying that the interest alleged to have been injured “may
That theory had been described earlier in FCC v. Saknders reflect ‘aesthetic, conservational, and recreational’ as well
Bros. Radio Station, 309 U.S. 470, 477, 60 S. Ct. 693, as economic values.” But broadening the categories of
698, 84 L.Ed. 869, as follows: injury that may be alleged in support of standing is a
different matter from abandoning the requirement that
“Congress had some purpose in enacting section 402(b) the party seeking review must himself have suffered an
(2). It may have been of opinion that one likely to be injury.
financially injured by the issue of a license would be the
only person having a sufficient interest to bring to the [7,8] Some courts have indicated a willingness to take
attention of the appellate court errors of law in the ac- this latter step by conferring standing upon organizations
tion of the Commission in granting the license. It is that have demonstrated “an organizational interest in the
within the power of Congress to confer such standing to problem” of environmental or consumer protection.
prosecute an appeal.” Environmental defense Fund, Inc. v. Hardin, 138
8
This approach to the question of standing was adopted by the Court of Appeals for the Second Cirvuit in Citizens Committee for Hudson
Valley v. Volpe. 425 F.2d 97, 105:
“We hold, therefore, that the public interest in environmental resources - an interest created by statutes affecting the issuance of this permit - is a
legally protected interest affording these plaintiffs, as responsible representatives of the public, standing to obtain judicial review of agency
action alleged to be in contravention of that public interest.”
9
The statute involved was § 402(b) (2) of the Communications Act of 1934, 48 Stat. 1093.
10
This much is clear from the Scripps-Howard Court’s citation of FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed.
869, in which the basis for standing was the competitive injury that the appellee would have suffered by the licensing of another radio station in
its listening area.
11
The distinction between standing to initiate a review proceeding, and standing to assert the rights of the public or of third persons once the
proceeding is properly initiated, is discussed in 3 K. Davis, Administrative Law Treatise §§ 22.05-22.07 (1958).
12
See, e.g., Environmental defense Fund, Inc. v. Hardin, 138 U.S. App. D.C. 391, 395, 428 F.2d 1093, 1097 (interest in health affected by
decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Office of Communication of United
Church of christ v. FCC, 123 U.S.App.D.C. 328, 339, 359 F.2d 994, 1005 (interest of television viewers in the programming of a local station
licensed by the FCC); Scenic Hudson Preservation Conf. v. FPC, 2 Cir., 354 F.2d 608, 615-616 (interests in sesthetics, recreation, and orderly
community planning affected by FPC licensing of a hydroelectric project); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631-632 (interest of consumers
of oleomargarine in fair labeling of product regulated by Federal Security Administration); Crowther v. Seaborg, D.C., 312 F. Supp. 1205, 1212
(interest in health and safety of persons residing near the sit of a proposed atomic blast).
7
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
U.S.App.D.C. 391, 395, 428 F.2d 1093, 1097. 13 It is view will be sought i the hands of those who have direct
clear that an organization whose members are injured stake in the outcome. That goal could be undermined
may represent those members in a proceeding for judi- were we to construe the APA to authorize judicial re-
cial review. See, e.g., NAACP v. Button, 371 U.S. 415, view at the behest of organizations or individuals who
428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. But a mere “in- seek to do no more than indicate their own value prefer-
terest in a problem,” no matter how longstanding the in- ences through the judicial process15 The principle that
terest and no matter how longstanding the interest and the Sierra Club would ... us establish in this case would
no matter how qualified the organization is in evaluating do ....that.
the problem, is not sufficient by itself to render the or-
ganization “adversely affected” or “aggrieved” within the [11] As we conclude that the Court of Appeals was cor-
meaning of the APA. The Sierra club is a large and long- rect in its holding, the Sierra Club lacked standing to
establishment to the cause of protecting our Nation’s contain this action, we do not reach ...other questions
natural heritage from man’s depredations. But if a “spe- presented in the pe..., and we intimate no view on the ...
cial interest” in this subject were enough to entitle the its of the complaint. the judgement ....
Sierra Club to commence this litigation, there would
appear to be no objective basis upon which to disallow a affirmed.
suit by any other bona fide “special interest” organiza-
tion however small or short-lived. And if any group with Mr. Justice POWELL and Mr. Justice REHNQUIST took
a bona fide “special interest” could initiate such litiga- no part in the consideration of decision of this cas.
tion, it is difficult to perceive why any individual citizen
with the same bona fide special interest would not also Mr. Justice DOUGLAS, dissenting.
be entitled to do so.
I share the views of my Brother BLACKMUN and would
[9,10] The requirement that a party seeking review must reverse the judgement below.
allege facts showing that he is himself adversely affected
does not insulate executive action from judicial review, The critical question of “standing” 16 would be simpli-
nor does it prevent any public interests from being pro- fied and also put neatly in focus if we fashioned a fed-
tected through the judicial process14 It does give as at eral rule that allowed environmental issues to be litigated
least a rough attempt to put a decision as to whether re- before federal agencies or federal courts in the name of
13
See Citizens Committee for Hudson Valley v. Volpe, n. 9, supra; Environmental Defense Fund, Inc. v. Corps of Engineers, D.C. 325 F.Supp.
728, 734-736; Izaak Walton League of America v. St. Clair, D.C. 313 F.Supp. 1312, 1317. See also Scenic Hudson Preservation Conf. v. FPC.
supra, 354 F.2d, at 616:
“In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational
aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be
included in the class of ‘aggrieved’ parties under § 313(b) [of the Federal Power Act].”
In most, if not all, of these cases, at least one party to the proceeding did assert an individualized injury either to himself or, in the case of an
organization, to its members.
14
In its reply brief, after noting the fact that it might have chosen to assert individualized injury to itself or to its members as a basis for standing,
the Sierra Club states:
“The Government seeks to create a reads I win, tails you lose’ situation in which either the courthouse door is barred for lack of assertion of a
private, unique injury or a preliminary injunction is denied on the ground that the litigant has advanced private injury which dos not warrant an
injunction adverse to a competing public interest. Counsel have ..aped their case to avoid this trap.”
The short answer to this contention is that the trap” does not exist. The test injury in fact goes only to the question of standing to obtain judicial
review. Once this standing is established, the party may assert the interest of the general public in support of his claims for equitable relief. See
n. 12 and accompanying text, supra.
15
Every school boy may be familiar with ...exis de Toequeville’s famous observation, written in the 1830’s, that “scarce-... any political ques-
tion arises in the United States that is not resolved,, sooner or later, into a judicial question.” 1 Democracy in America 280 (1945). Less familiar,
however, is De Toequeville’s further observation that judicial review is effective largely because it is not available simply at the beherest of a
partisan faction, but is exercised only to remedy a particular, concrete injury.
“It will be seen, also, that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trail of an
individual, legislation is protected from wanton assault and from the daily aggressions of party spirit. The errors of the legislator are exposed
only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.” Id., at 102.
16
See generally Association of data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow
v. collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). See also Mr.
Justice Brennan’s separate opinion in Barlow v. Collins, supra, 397 U.S., at 167, 90 S.Ct., at 838. The issue of statutory standing aside, no doubt
exists that “injury in fact” to “aesthetic” and “conservational” interests is here sufficiently threatened to satisfy the cease-or-controversy clause.
Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S., at 1564, 90 S. Ct., at 830.
8
SIERRA CLUB V MORTON
the inanimate object about to be despoiled, defaced, or in the Appendix to this opinion, takes a wholly different
invaded by roads and bulldozers and where injury is the approach. He considers the problem in terms of “gov-
subject of public outrage. Contemporary public concern ernment by the Judiciary.” With all respect, the problem
for protecting nature’s ecological equilibrium should lead is to make certain that the inanimate objects, which are
to the conferral of standing upon environmental objects the very core of America’s beauty, have spokesmen be-
to sue for their own preservation. See Stone, Should fore they are destroyed. it is of course, true that most of
Trees Have Standing? Toward Legal Rights for Natural them are under the control of a federal or state agency.
Objects, 45 S.Cal.L.Rev. 450 (1972). This suit would The standards given those agencies are usually expressed
therefore be more properly labeled as Mineral King v. in terms of the “public interest.” Yet “public interest”
Morton. has so many differing shades of meaning as to be quite
meaningless on the environmental front. Congress ac-
Inanimate objects are sometimes parties in litigation. A cordingly has adopted ecological standards in the Na-
ship has a legal personality, a fiction found useful for tional Environmental Policy Act of 1969, Pub.L. 91-90,
maritime purposes.17 The corporation sole - a creature 83 Stat. 852, 42 U.S.C. § 4321 et seq., and guidelines for
of ecclesiastical law - is an acceptable adversary and large agency action have been provided by the Council on
fortunes ride on its cases. 18 The ordinary corporation is Environmental Quality of which Russell E. Train is Chair-
a “person” for purposes of the adjudicatory processes, man. See 36 Fed.Reg. 7724.
whether it represents proprietary, spiritual, aesthetic, or
charitable causes. 19 Yet the pressures on agencies for favorable action one
way or the other are enormous. The suggestion that
Mineral King is doubtless like other wonders of the Si- Congress can stop action which is undesirable is true in
erra Nevada such as Tuolumne Meadows and the John theory; yet even Congress is too remote to give mean-
Muir Trail. Those who hike it, fish it, hunt it, camp in it, ingful direction and its machinery is too ponderous to
frequent it, or visit it merely to sit in solitude and won- use very often. The federal agencies of which I speak
derment are legitimate spokesmen for it, whether they are not venal or corrupt. But they are notoriously under
may be few or many. Those who have that intimate rela- the control of powerful interests who manipulate them
tion with the inanimate object about to be injured, pol- through advisory committees, or friendly working rela-
luted, or otherwise despoiled are its legitimate spokes- tions, or who have that natural affinity with the agency
men. which in time develops between the regulator and the
regulated. 20 As early as 1894, Attorney General Olney
The Solicitor General, whose views on this subject are
17
In rem actions brought to adjudicate libelants’ interests in vessels are well known in admiralty. G. Gilmore & C. Black, The Law of Admiralty
31 (1957). But admiralty also permits a salvage action to be brought in the name of the rescuing vessel. The Camanche, 8 Wall. 448, 476, 19
L.Ed. 397 (1869). And, in collision litigation, the first-libeled ship may counterclaim in its own name. The Gylfe v. The Trujillo, 209 F.2d 386
(CA2 1954). Our case law has personified vessels:
“A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and
iron .... In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed .... She acquires
a personality of her own.” Tucker v. Alexandroff, 183 U.S. 424, 438, 22 S.Ct. 195, 201, 46 L.Ed. 264.
18
At common law, an officeholder, such as a priest or the king, and his successors constituted, a corporation sole, a legal entity distinct from the
personality which managed it. Rights and duties were deemed to adhere to this device rather than to the officeholder in order to provide
continuity after the latter retired. The notion is occasionally revived by American courts. E.g., Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927),
discussed in Recent Cases, 12 Minn.L.Rev. 295 (1928), and in Note, 26 Mich.L.Rev. 545 (1928); see generally 1 W. Fletcher, Cyclopedia of the
Law of Private Corporation §§ 50-53 (1963); 1 P. Potter, Law of Corporations 27 (1881).
19
Early jurists considered the convention corporation to be a highly artificial entity. Lord Coke opined that a corporation’s creation “rests only
in intendment and consideration of the law.” Case of Sutton’s Hospital. 77 Eng. Rep. 937, 97.. (K.B.1612). Mr. Chief Justice Marshall added
that the device is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Wood-
ward, Whate, 518, 636, 4 L.Ed. 629 (1819). Today, suits in the names of corporations are taken for granted.
20
The federal budget annually includes about $75 million for underwriting about 1,500 advisory committees attached to various regulatory
agencies. These groups are almost exclusively composed of industry representatives appointed by the President or by Cabinet members. Al-
though public members may be on these committees, they are rarely asked to serve. Senator Lee Metcalf warns: “Industry advisory committees
exist inside most important federal agencies, and even have offices in some. Legally, their function is purely as kibitzer, but in practice many have
become internal lobbis - printing industry handouts in the Government Printing Office with taxpayers’ money, and even influencing policies.
Industry committees perform the dual function of stopping government from finding out about corporations while at the same time helping
corporations get inside information about what government is doing. sometimes, the same company that sits on an advisory council that ob-
structs or turns down a government questionnaire is precisely the company which is withholding information the government needs in order to
enforce a law.” Metcalf, The Vested Oracles: How Industry Regulates Government, 3 The Washington Monthly, July 1971, p. 45. For proceed-
ings conducted by Senator Metcalf exposing these relationships, see Heqrings on S. 3067 before the Subcommittee on Intergovernmental Rela-
tions of the Senate Committee on Government Operations, 91st Cong., 2d Sess. (1970); Hearings on S. 1637, S. 1964, and S. 2064 before the
Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 92d Cong., 1st Sess. (1971).
9
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
predicted that regulatory agencies might become “indus- “Ours is not a government by the Judiciary. It is a govern-
try-minded,” as illustrated by his forecast concerning the ment of three branches, each of which was intended to
Interstate Commerce Commission: have broad and effective powers subject to checks and
balances. In litigable cases, the courts have great author-
“The Commission ..... is, or can be made, of great use to ity. But the Founders also intended that the congress should
the railroads. it satisfies the popular clamor for a govern- have wide powers, and that the Executive Branch should
ment supervision of railroads, at the same time that that have wide powers. All these officers have great responsi-
supervision is almost entirely nominal. Further, the older bilities. They are not less sworn that are the members of
such a commission gets to be, the more inclined it will be this Court to uphold the Constitution of the United States.
found to take the business and railroad view of things.”
M. Josephson, The Politicos 525 (1938). “This, I submit, is what really lies behind the standing
doctrine, embodied in those cryptic words ‘case’ and ‘con-
Years later a court of appeals observed, “the recurring troversy’ in Article III of the Constitution.
question which has plagued public regulation of industry
[is] whether the regulatory agency is unduly oriented to- “Analytically one could have a system of government in
ward the interests of the industry it is designed to regu- which every legal question arising in the core of govern-
late, rather than the public interest it is designed to pro- ment would be decided by the courts. It would note be, I
tect.” Moss v. CAB, 139 U.S.App.D.C. 150, 152, 430 F.2d submit, a good system.
891, 893.
“More important, it is not the system which was ordained
The voice of the inanimate object, therefore, should not and established in our Constitution, as it has been under-
be stilled. that does not mean that the judiciary takes over stood for nearly 200 years.
the managerial functions from the federal agency. It
merely means that before these priceless bits of Ameri- “Over the past 20 or 25 years, there has been a great shift
cana (such as a valley, an alpine meadow, a river, or a in the decision of legal questions in our governmental
lake) are forever lost or are so transformed as to be re- operations int the courts. this has been the result of con-
duced to the eventual rubble of our urban environment, tinuous whittling away of the numerous doctrines which
the voice of the existing beneficiaries of these environ- have been established over the years, designed to mini-
mental wonders should be heard. mize the number of governmental questions which it was
the responsibility of the courts to consider.
Perhaps they will not win. Perhaps the bulldozers of
“progress” will plow under all the aesthetic wonders of “I’ve already mentioned the most ancient of all: case or
this beautiful land. that is not the present question. The controversy, which was early relied on to prevent the pres-
sole question is, who has standing to be heard? entation of feigned issues to the court.
APPENDIX TO OPINION OF DOUGLAS J., “But there are many other doctrines, which I cannot go
into in detail: review-ability, justiciability, sovereign im-
DISSENTING munity, mootness in various aspects, statutes of limita-
tions in laches, jurisdictional amount, real party in inter-
Extract From Oral Argument of The Solicitor General est, and various questions in relation to joinder.
“As far as I know, no case has yet been decided which “Under all of these headings, limitations which previously
holds that a plaintiff which merely asserts that, to quote existed to minimize the number of questions decided in
from the complaint here, its interest would be widely af- courts, have broken down in varying degrees.
fected [a]nd that ‘it would be aggrieved’ by the acts of the
defendant, has standing to raise legal questions in court. “I might also mention the explosive development of class
actions, which has thrown more and more issues into the
“But why not? Do not the courts exist to decide legal courts.
questions? And are they not the most impartial and learned
agencies that we have in our governmental system? Are “If there is standing in this case, I find it very difficult to
there not many questions which must be decided by the think of any legal issue arising in government which will
courts? Why should not the courts decide any question not have to await one or more decisions of the Court be-
which any citizen wants to raise? fore the administrator, sworn to uphold the law, can take
any action. I’m not sure that it’s good for the courts. I do
“As the tenor of my argument indicates this raises, I think, find myself more and more sure that it is not the kind of
a true question, perhaps a somewhat novel question, in allocation of governmental powers in our tripartite con-
the separation of powers .... stitutional system that was contemplated by the Found-
ers.
10
SIERRA CLUB V MORTON
“I do not suggest that the administrators can act at their decision in Data Processing itself. It need only recog-
whim and without any check at all. On the contrary, in nize the interest of one who has a provable, sincere, dedi-
this area they are subject to continuous check by the Con- cated, and established status. We need not fear that
gress. Congress can stop this development any time it Pandora’s box will be opened or that there will be no limit
wants to.” to the number of those who desire to participate in envi-
ronmental litigation. The courts will exercise appropri-
Mr. Justice BRENNAN, dissenting. ate restraints just as they have exercised them in the past.
Who would have suspected 20 years ago that the con-
I agree that the Sierra Club has standing for the reasons cepts of standing enunciated in Data Processing and
stated by my Brother BLACKMUN in Alternative No. 2 Barlow would be the measure for today And Mr. Justice
of his dissent. I therefore would reach the merits. Since DOUGLAS, in his eloquent opinion, has imaginatively
the Court does not do so, however, I simply note agree- suggested another means and one, in its own way, with
ment with my Brother BLACKMUN that the merits are obvious, appropriate, and self-imposed limitations as to
substantial. standing. As I read what he has written, he makes only
one addition to the customary criteria (the existence of a
Rather than pursue the course the Court has chosen to genuine dispute; the assurance of adversariness; and a
take by its affirmance of the judgement of the Court of conviction that the party whose standing is challenged will
Appeals, I would adopt one of two alternatives: adequately represent the interest he asserts), that is, that
the litigant be one who speaks knowingly for the environ-
1. I would reverse that judgement and, instead, approve mental values he asserts.
the judgement of the District Court which recognized
standing in the Sierra Club and granted preliminary re- I make two passing references:
lief. I would be willing to do this on condition that the
Sierra Club forthwith amend its complaint to meet the 1. The first relates to the Disney figures presented to use.
specifications the Court prescribes for standing. If Sierra The complex, the Court notes, will accommodate 14,000
Club fails or refuses to take that step, so be it; the case visitors a day (3,100 overnight; some 800 employees; 10
will then collapse. But if it does amend, the merits will restaurants; 20 ski lifts). The State of California has pro-
be before the trial court once again. As the Court, ante, at posed to build a new road from Hammond to Mineral
1364 n. 2, so clearly reveals, the issues on the merits are King. That road, to the extent of 9.2 miles, is to traverse
substantial and deserve resolution. They assay new Sequoia National Park. It will have only two lanes, with
ground. They are crucial to the future of Mineral Kind. occasional passing areas, but it will be capable, it is said,
They raise important ramifications for the quality of the of accommodating 700-800 vehicles per hour and a peak
country’s public land management. They pose the pro- of 1,200 per hour. We are told that the State has agreed
priety of the “dual permit” device as a means of avoiding not to seek any further improvement in road access through
the 80-acre “recreation and resort” limitation imposed by the park.
Congress in 16 U.S.C. § 497, an issue that apparently has
never been litigated, and is clearly substantial in light of If we assume that the 14,000 daily visitors come by auto-
the congressional expansion of the limitation in 1956 ar- mobile (rather than by helicopter or bus or other known
guably to put teeth into the old, unrealistic five-acre limi- or unknown means) and that each visiting automobile
tation. In fact, they concern the propriety of the 80-acre carries four passengers (an assumption, I am sure that is
permit itself and the consistency of the entire, enormous far too optimistic), those 14,000 visitors will move in 3,500
development with the statutory purposes of the Sequoia vehicles. If we confine their movement (as I think we
Game Refuge, of which the Valley is a part. In the con- properly may for this mountain area) to 12 hours out of
text of this particular development, substantial questions the daily 24, the 3,500 automobiles will pass any given
are raised about the use of a national park area for Disney point on the two-lane road at the rate of about 300 per
purposes for a new high speed road and a 66,000-volt hour. this amounts to five vehicles per minute, or an av-
power line to serve the complex. Lack of compliance erage of one every 12 seconds. This frequency is further
with existing administrative regulations is also charged. increased to one every six seconds when the necessary
These issues are not shallow or perfunctory. return traffic along that same two-lane road is considered.
And this does not include service vehicles and employ-
2. Alternatively, I would permit an imaginative expan- ees’ cars. Is this the way we perpetuate the wilderness
sion of our traditional concepts of standing in order to and its beauty, solitude, and quiet?
enable an organization such as the Sierra club, possessed,
as it is, of pertinent, bona fide, and well-recognized at- 2. The second relates to the fairly obvious fact that any
tributes and purposes in the area of environment, to liti- resident of the Mineral King area - the real “user” - is an
gate environmental issues. this incursion upon tradition unlikely adversary for this Disney-governmental project.
need not be very extensive. Certainly, it should be no He naturally will be inclined to regard the situation as
cause for alarm. It is no more progressive than was the one that should benefit him economically.
11
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
VON MOLTKE v. COSTA AREOSA (PTY.) LTD.
(CAPE PROVINCIAL DIVISION)
1974. AUGUST 28; SEPTEMBER 26. DIEMONT, J.
Nuisance. —Interdict restraining a public nuisance respondent company to the Divisional Council of the
sought. —What an individual applying for relief must Cape. He learned that the township scheme was to include
prove in order to establish locus standi in judicio. — a shopping centre, a game park and a funicular railway.
Must at least allege facts to show he has a special rea- This troubled him and he accordingly proceeded to the
son for coming to Court. —Failure to establish locus respondent company’s offices in the Trust Bank Centre
standi on the facts. where he was shown a model of the housing scheme and
a brochure. He was distressed by what he learned and
Whether the party seeking an interdict restraining a nui- decided to oppose the scheme and in due course he filed
sance proceeds by way of summons or on motion he must his written objection with the Secretary of the Provincial
show that he is suffering or will suffer some injury, preju- Administration. Indeed, he was so concerned that he set
dice, or damage or invasion of right peculiar to himself about organising a petition for which he claims that he
and over and above that sustained by the members of the now has 4 000 signatures. He alleges further that he was
public in general. It is not enough to allege that a nui- also instrumental in organising a protest meeting at Hout
sance is being committed, he must go further and at the Bay.
very least allege facts from which it can be inferred that
he has a special reason for coming to Court. He states further in his affidavit that he was under the
impression that the development of Sandy Bay would be
Application for interdict restraining the respondent from held over until the local government had had an
carrying on certain alleged development operations. Facts opportunity of considering the objections to the scheme
not material to this report have been omitted. for the development of Sandy Bay, and he says that he
was informed that the Divisional Council had resolved
E. L. King, for the applicant. to hold a meeting in due course in order to consider these
objections.
G. Friedman, S.C. (with him R. M. Marais, S.C. and P.
B. Hodes), for the respondent. The deponent goes on to state that on Tuesday, 27 August,
he ascertained that bulldozing operations had already
Cur. adv. vult. commenced on the property and that the indigenous
vegetation was being destroyed at a point approximately
Postea (September 26). 200 yards above the high water mark. On the following
day, Wednesday 28 August, he spoke to the driver of the
DIEMONT, J.: The applicant in this matter is Frederick bulldozer on the site and endeavoured to persuade him
Baldur Harrer Braun Von Moltke, who resides at to stop his operations, but the driver was unco-operative
Llandudno in the Cape Peninsula. The respondent is a and when he endeavoured to continue the discussion the
private company, Costa Areosa (Pty.) Ltd. of Trust Bank driver seized a stone in a threatening manner. In
Centre, Heerengracht, Cape Town. conclusion he alleges that the bulldozing operations and
the development of Sandy Bay will constitute a nuisance
The applicant states in his founding affidavit that he has to his enjoyment of the property he has purchased as well
been residing at Llandudno since February of this year as to the surrounding area and that irreparable damage is
and that on 19 August he purchased a property there. He being done to the natural vegetation and also that the
states that he bought the property because he dislikes sand dunes are being disturbed.
crowded city life and he wishes to live in a peaceful and
quiet area which is close to nature and to its natural An affidavit was also filed by the Secretary of the Divi-
condition. The house which he purchased and in which sional Council who states that no final decision has yet
he now resides is approximately one mile as the crow been taken by the Council in regard to the development
flies—or perhaps I should say as the sea gull flies—from of this area but that objections have been lodged and will
an area commonly known as Sandy Bay. He states further be considered at a future meeting of the Council.
that on 19 July of this year he became aware for the first
time that Sandy Bay was to be developed as a township The applicant now seeks an interdict which will restrain
and that an application had been submitted by the the respondent from carrying on any further operations
12
VON MOLTKE V C OSTA AREOSA (PTY) L TD
for the development of the Sandy Bay area and for an [The learned Judge dealt further with the affidavits and
order directing the respondent to restore the property to continued.]
the condition it was in before the operations commenced.
It is clear from these affidavits that a number of facts are
When the matter came before me on 28 August, Mr. in dispute and that no final interdict can be granted on
Marais, who appeared for the respondent, stated that he these contested issues. But applicant claims that on the
had had no opportunity to consider these affidavits nor admitted facts before the Court a rule nisi operating as a
had he had time to obtain and file opposing affidavits. temporary interdict can be granted. Mr. Friedman, who
The matter was accordingly postponed to give the re- now appears with Mr. Marais for the respondent, con-
spondent time to consider his position and to file oppos- tends that not even a temporary interdict can be granted
ing affidavits. These have now been filed. since the applicant lacks locus standi in judicio. He ar-
gues that so far as the common law is concerned the ap-
In the first of these affidavits Ian Grant Fraser, a director plicant must show not only that the respondent’s activi-
of the respondent company, challenges the applicant’s ties in bulldozing the bush constitute a nuisance, but also
locus standi to bring these proceedings against his com- that he is so affected by that nuisance that he has the
pany and asks that the application be dismissed with right to ask the Court for relief. Mr. King, for the appli-
costs. He goes on to state that, in view of the great pub- cant, argues that by destroying the vegetation and inter-
lic interest which the matter has aroused, he deems it fering with the ecology the respondent company is com-
advisable to deal with the allegations made by the appli- mitting a public nuisance. The respondent denies that
cant. He says that he is “acutely aware that the develop- the ecology is suffering; the vegetation which is threat-
ment which it proposed for the area known as Sandy Bay ened is not indigenous but alien, namely, Rooikrans Bush.
requires approval from various public authorities and rec- Assuming that the destruction of this vegetation consti-
ognises that interested members of the public are enti- tutes a public nuisance_which I doubt_what rights has
tled to put their points of view to such authorities”. applicant in the matter? He lives at Llandudno which is
some considerable distance away from Sandy Bay. Re-
He claims that it is not necessary to consider the merits spondent avers that the configuration of the land is such
or demerits of the proposed development of Sandy Bay; that Sandy Bay and its environs are barely visible from
the scheme will in due course be judged by the authorities. Llandudno, and there is no suggestion on the papers that
He alleges further that the applicant has assumed without applicant can see the site of the bulldozer’s operations
making any proper enquiries that the bulldozing from where he lives. Nor does applicant allege that he
operations complained of are the first steps in the frequently visits Sandy Bay; indeed, he does not even
development of the proposed scheme. This, he says, is allege that he has ever been there. All he says in his affi-
quite incorrect. He denies emphatically that this is so davit is that he is approximately one mile from Sandy
and he says that he resents any suggestion and respondent Bay and that he bought his property to be close to nature
is attempting to commence construction without having and for peace and quiet.
obtained approval for the proposed development. He says
that the respondent is engaged in determining the seaward It is not necessary to labour the point further. Whether
boundary of its property and that this entails a surveyor he proceeds by way of summons or on motion the party
having to get to the beach with elaborate and cumbersome seeking relief must show that he is suffering or will suf-
survey equipment. Respondent further contemplates fer some injury, prejudice, or damage or invasion of right
erecting a fence along his seaward boundary and it will peculiar to himself and over and above that sustained by
be necessary to establish an access road to facilitate the the members of the public in general. It is not enough to
task of the fencing contractor. In any event the respondent allege that a nuisance is being committed, he must go
wishes to exercise closer control over its property and to further and at the very least allege facts from which it
have vehicular access to the beach and adjacent area. can be inferred that he has a special reason for coming to
There is, he says, no doubt that Sandy Bay has acquired Court.
a certain fame or notoriety, depending on one’s point of
view, as a beach frequented by nudists. Extensive He has failed to make such allegation and consequently
publicity has led to large numbers of visitors coming to it seems to me that the objection taken is sound.
the beach. This has given rise to a number of problems,
one of which is the absence of toilet facilities. The Mr. King, contends in the alternative that, even if the
respondent accordingly deems it necessary to provide a Court cannot interdict the alleged nuisance, the appli-
quick access road so that it can exercise supervision and cant is entitled to statutory relief. He argues that it is
control its property. In any event, the owners of the common cause that the respondent company has made
respondent company are entitled to provide an easy application for the establishment of a township, and he
access road to the beach for their own use and for the refers to sec. 13 of the Ordinance, 33 of 1934 (C), which
enjoyment of their families and friends. provides that:
13
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
“From the time application is made for the establishment Court in Neethling and Another v. S.A. Central Co-
of a township or the sub-division of an estate, until such operative Grain Co. Ltd., 1933 C.P.D. 179 at p. 185, that
time as such township or sub-divided estate has become it was “not only good law, but also common sense”. I
an approved township or approved sub-divided estate, respectfully agree.
as the case may be, or the application has lapsed or has
been refused or withdrawn— The Ordinance provides machinery for the enforcement
of its provisions. Where an application is made to
(a) the land to which the application relates shall not be establish a township and the applicant is so optimistic of
sub-divided or laid out in any manner and no building the prospects that he proceeds to sub-divide the land or
shall be erected thereon; lay-out the land before obtaining approval, he is
contravening sec. 13 and committing an offence which
........................................................................................ renders him liable to conviction and a fine not exceeding
R 5 000 or imprisonment for ten years, or to both fine
unless the consent of the Administrator shall first have and imprisonment (sec. 62). Moreover, sec. 61 imposes
been obtained.” a duty on the local authority to take all lawful steps
necessary for enforcing compliance with the provisions
As respondent’s application is still pending the land of a scheme in the course of preparation or awaiting
cannot be “laid out in any manner”. It is argued that if approval. If the local authority fails to perform its duty
“laying out” includes the levelling and removal of bush, the Administrator may perform such duty. There is ample
the respondent company is contravening the Ordinance, machinery for enforcing the provisions of the Ordinance
and can therefore be interdicted from continuing its and it is therefore unnecessary for a member of the public
operations. to take the initiative unless he can bring himself within
the terms of the general rule set out in the judgment of
In my view the construction of an access road to a piece SOLOMON, J., cited above. Since the applicant has not
of land does not constitute the “laying out” of the land. alleged any special damage or peculiar injury beyond
The phrase “to lay out” suggests something more_a de- that which he may have sustained in common with other
tailed planning or plotting of land or buildings. But coun- citizens he has failed to show that he has locus standi in
sel for the respondent contends that even if the conduct respect of the alleged infringement of the Townships
complained of can be described as the first step or com- Ordinance.
mencement of the “laying out” of this land, the appli-
cant has no locus standi to object. In support of this con- Finally, it is argued by Mr. King that, quite apart from
tention counsel relies on the judgment of SOLOMON, the Townships Ordinance, the Town Planning Regulations
J., in Patz v. Greene & Co., 1907 T.S. 427 at p. 433: are being contravened in that the respondent company is
putting the land to a use for which it is not zoned.
“In the case of Chamberlaine v. Chester and Birkenhead
Railway Co., 18 L.J. Ex 494, the law on this subject is I do not propose considering the merits of this argument
thus laid down by Chief Baron POLLOCK in delivering since the same objection to the locus standi of the
the considered judgment of the Court: applicant applies.
‘With respect to the first point, there is no doubt as to the It follows that the applicant is entitled to relief neither in
general rule. Where a statute prohibits the doing of a respect of an alleged public nuisance nor in respect of
particular act affecting the public no person has a right the alleged contraventions of the Townships Ordinance
of action against another merely because he has done and the Town Planning Regulations.
the prohibited act. It is incumbent on the party
complaining to allege and prove that the doing of the act The application is accordingly dismissed with costs.
prohibited has caused him some special damage....’.”
Applicant’s Attorneys” Herold, Gie & Broadhead. Re-
In commenting on this passage SUTTON, J., said in this spondent’s Attorneys: Buiski, Herbstein & Ipp.
14
HIGH COURT CIVIL SUIT NO. 5403 OF 1989
PROFESSOR WANGARI MAATHAI, CO-ORDINATOR,
GREEN BELT MOVEMENT) —PLAINTIFF
v.
KENYA TIMES MEDIA TRUST LTD. — RESPONDENT
RULING 1. The Chamber Summons - and the ground of objec-
tion annexed thereto were totally without merit and
A chamber Summons was filed on 27.11.1989 by the intended to prevent a fair hearing of the issues raised
applicant-plaintiff seeking a temporary injunction re- and are contrary to Public Policy.
straining the Defendant Company from embarking fur-
ther on the construction of the proposed Kenya Times 2. The suit was for certain declarations and the law was
Complex at Uhuru Park until determination of the suit that no cause of action need be disclosed (although
or further orders of the court. in fact such cause of action is actually disclosed).
The applicant plaintiff is one Professor Wangari Maathai 3. That the plaint has not yet been served on the de-
and she is described as Co-ordinator, Green Belt Move- fendant as provided by law and consequently the
ment. Appearing for the plaintiff is Professor Ooko plaintiff can amend her plaint should she so wish at
Ombaka and he is assisted by Mr. Githu Muigai and Mr. her sole discretion. The application to strike out the
Mohamed Nyaoga. plaint is thus premature and is an abuse of the court
process.
Mr. Oraro appears for the defendant.
Mr. Oraro commenced his preliminary objection and
Mr. Oraro has raised a preliminary objection and by a addressed the Court with his arguments based on the two
Chamber Summons dated 1.12.89 he sought to strike out grounds that he had chosen and which grounds — are
the plaint on 7 grounds but learned counsel wishes to opposed and objected to by Mr. Ombaka.
proceed on 2 grounds only for the purposes of his pre-
liminary objection. Learned Counsel Mr. Oraro said it was trite rule of law
that before a person applied for a temporary injunction
(1) That the plaint discloses no cause of action against he or she must show a cause of action which is depend-
the defendant, and ent on the validity of the plaint. In the present case the
plaintiff filed her plaint but refused to serve the plaint —
(2) That the plaintiff has no locus standi to file the suit — on the defendant. In fact learned counsel said that the
or the application. plaintiff proudly stated (through her advocate Mr.
Ombaka) that the defendant could not object to her plaint
Professor Ombaka who was content to be addressed as (Mr. Oraro said “invalid” plaint) because it had not yet
Mr. Ombaka had raised objections to the hearing of the been served, the criticism of non service of the plaint upon
preliminary objection and “Grounds of Objection” are the defendant must be merited. Mr. Oraro would have
contained in a document dated 4.12.1989. Mr. Ombaka been entitled to ask for an adjournment apart from other
asked for his objections to the preliminary points to be remedies available to him but learned counsel has elected
heard first and after discussions with learned counsel the to proceed and he has a copy of the plaint. It is noted that
court adjourned to consider the various points that had the 3rd ground of objection made by Mr. Ombaka in writ-
been raised. The Court ruled that the preliminary objec- ing states the plaint has not been served on the defendant
tion would proceed first and informed Mr. Ombaka that “as the provided by law” and consequently the plaintiff
whatever subject matter he raised in his Answer was up can amend her plaint should she so wish at her sole dis-
to himself providing it was relevant. cretion. The application to strike out her plaint is thus
premature and is an abuse of the court process.
Mr. Ombaka in his Grounds of Objection alleged inter
alia that: This court will set out the appropriate Orders and rules
shortly so that the plaintiff can be aware of the wrongful
15
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
submissions being put forward based on misinterpreta- bled to look at the 3 Civil Procedures Rules, commenc-
tion of the very clear Orders and rules to be found in the ing under the marginal note “Institution of suit and Is-
Civil Procedure Act and the Civil Procedure Rules. sue of Proceedings” namely Order IV rule 1, rule 3(1)
and rule 3(3) he would face 3 simple sentences.
It is difficult to see how, if a plaint has not been served
on a defendant, that the defendant can possibly have any Is it possible that a trained Advocate who is entitled to
idea of the case against him. call himself professor and/or Doctor, assisted by two
other trained advocates can put forward such erroneous
For that matter how can it be that non service of a plaint arguments based on simple straightforward rules in re-
can be “as provided by law”? How can it be an abuse od spect of which they are supposed to be experts?
the court process to make an application to strike out a
plaint? Mr. Ombaka submitted that Order VI rule 13 (he actu-
ally said order V rule 13) must be read in the context of
Mr. Oraro said he had a simple legal answer to the ob- the entire code and in particular to Order VI rule 1 which
jections of Mr. Ombaka and he referred to Order VI rule empowers a party to amend once before the pleadings
13(1) of the Civil Procedure Rules which reads: are closed. Learned Counsel submitted that any other in-
terpretation which does not give effect to Order VIA rule
At any stage of the proceedings the court may order to be 1 does not make sense. He said moving to strike down a
struck out or amended any pleading on the ground that claim when it could be amended without leave of the
court would render Order VIA rule 1 nugatory. It would
(2) it discloses no reasonable cause of action or defence. defeat the course of justice.
At some stage in his Answer to Mr. Oraro’s submissions The Court has dealt with Order VI rule 13 which it finds
Mr. Ombaka submitted that an interlocutory court (mean- does not have to be read in the context of the entire code
ing this court) cannot decide on the merits of a suit which or Order VIA rule 1 and this submission is dismissed.
the court has not been able to assess the merits by way
of trial. Mr. Oraro had referred to Order XXXV rule 1 to show
that a Judgement could be obtained by summary proce-
The court notes that Order VI rule 13(2) provides “No dure and that there was more than one way to obtain a
evidence shall be admissible on an application under sub- ruling or judgement without trial and he asked the court
rule 1(2) but the application should state the grounds on to contrast the Order with the application being made
which it is made”. There is no question of this court hear- under Order VI rule 13.
ing the plaint on its merits and assessing the same. No
evidence is admissible on the precise application now Mr. Ombaka said the reference to the order was unnec-
being made. essary because it related to summary procedure.
The Court now refers to Order IV rule I of Suit and Mr. Oraro for the Defendant Company had addressed
Issue of Proceedings” (Quotes placed by the court, so the count on the basis that the plaintiff had brought the
also is the underlining) “Every suit shall be instituted by action in a private capacity. In order to arrive at this con-
presenting a plaint to the court or in such other manner clusion he had dealt at length with representative actions
as may be prescribed.” and showed that the plaintiff had not complied with the
Civil Procedure Rules for taking representative actions
Order IV rule 3(1) reads, and that the contents of the plaint did not show any such
intention. Learned Counsel dealt with many authorities
“When a suit has been filed a summons shall be served and he supplied the court with copies of those authori-
to the defendant ....” ties.
“Every Summons shall be accompanied by a copy of the Mr. Oraro then switched his address and dealt with rela-
plaint”. tor actions and showed that on good authorities only the
Attorney General could file and prosecute an action on
Order iv rule 3(3) reads, behalf of the public. Here again learned counsel supplied
the court and the plaintiff’s advocate with copies of the
Mr. Oraro says the suit must be a valid suit - not an invalid authorities.
suit to be amended later. Mr. Ombaka seems to think
that he can keep the material facts of his claim away Learned Counsel further concluded that the plaintiff could
from the defence by not serving the plaint. not file a relator action or otherwise, on behalf of the
public.
[sic] If a layman wanted to file a suit and he was ena-
16
WANGARI MATHAI V K ENYA T IMES MEDIA T RUST
Mr. Ombaka in his answer made positive statements that e. refers to fencing and the ground breaking ceremony.
the plaintiff’s action was not a relator action and it is not A breach of the Land Planning Act and Regulations
a representative action. Learned Counsel said it is a per- and Building By Laws is alleged.
sonal action against Kenya Times Ltd. There is no claim
in the suit that the plaintiff is bringing that suit on behalf It is further alleged that consent has not been applied for
of anyone else other than herself. but goes on to allege that consent cannot be legally given.
It is further alleged that the Defendant has committed an
Learned Counsel further said that anything else in the offence under Regulation 10 of the Development and Use
plaint does not mean anyone but herself. “Co-ordinator” of Land (Planning) Regulations 1961. Paragraph 4 re-
merely describes herself. fers to the Constitution and democracy.
Mr. Ombaka said it may strengthen her standing before The Court has now perused the plaint and finds that the
the court because of the subject matter of the suit. There plaint discloses no cause of action against the defendant.
had been a suggestion that the plaint may have been
brought on moral or social grounds. He would support that. This finding is sufficient for the court to strike out the
plaint. However, the court will also consider the second
Learned Counsel said his friend puts an interlocutory ground which alleges that the plaintiff has no standi to
court in a position whereby a trial court would be hear- file the suit or the application.
ing the evidence. The court remarked that this latter point
has already been dealt with when discussing the posi- Under sub-paragraph (e) it is alleged that there are
tion under Order VI rule 13 and other rules and no fur- breaches of Government or Local Government Laws,
ther comment will be made. Regulations and By-Laws. It is not alleged that the plain-
tiff is able or has any right to bring an action in respect
The court now looks again at the three (3) Grounds of of these alleged breaches of law.
Objection filed by Mr. Ombaka against the preliminary
objection raised by Mr. Oraro. The court discussed the Nor is it alleged that the Defendant Company is in breach
3rd ground in some detail and after full consideration all of any rights, public or private. There is no allegation of
three (3) grounds of objection were dismissed with costs. damage or anticipated damage or injury. In particular it
is not alleged that the Defendant Company is in breach
This leaves the preliminary objection to be considered of any rights, public or private in relation to the plaintiff
on the two grounds put forward. They are each to be nor has the company caused damage to her nor does she
considered separately. anticipate any damage or injury.
The first ground is that the plaint shows no reasonable It is well established that only the Attorney General can
cause of action against the defendant. It is noted that the sue on behalf of the public but in any event the plaintiff
description “reasonable” is not used. does not wish to bring an action on behalf of anyone
else. In the plaint there is no allegation that the plaintiff
Mr. Ombaka in the second ground of his Grounds of has a right of action against the defendant company.
Objection (which have been dismissed) stated that “....
in this case such cause of action is actually disclosed”. Mr. Ombaka had said it may strengthen her (plaintiff’s)
standing before the court because of the subject matter
The court now turns to the plaint itself, to ascertain the of the suit and he adopted what he said had been a sug-
cause of action. Paragraph 1 describes the plaintiff as a gestion that the plaint may have been brought on moral
co-ordinator but as her learned counsel has said this term or social grounds.
merely describes herself.
This may be so. The plaintiff has strong views that it
Paragraph 2 describes the Defendant as a company lim- would be preferable if the building of the complex never
ited by decree [sic]. Paragraph 3.1 records that the plain- took place in the interests of many people who had not
tiff’s application for a licence to organize a demonstra- been directly consulted. Of course many buildings are
tion to protest against the location of the complex has being put up in Nairobi without many people being con-
not been quoted. sulted. Professor Maathai apparently thinks this, is a spe-
cial case. Her personal views are immaterial.
b. refers to the support for the complex.
The Court finds that the plaintiff has no right of action
c. refers to opposition for the complex. against the Defendant Company and hence she has no
locus standi.
d. refers to violation of the green belt.
17
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
While only one of these two findings would suffice, the For the sake of clarity the Court repeats:-
court strikes out the plaint on both grounds, (1) that the
plaint discloses no reasonable cause of action against the the preliminary objection made by Mr. Oraro for the
defendant and (2) the plaintiff has no locus standi . Or- Defence and dated 1st December, 1989 is upheld on the
ders accordingly, The Plaintiff will pay the costs of the 2 grounds that were argued. The Court found (1) that the
Defendant. plaint disclosed no reasonable cause of action against
the and (2) that the plaintiff has no locus standi to file
The application filed on 27.11.1989 seeking a tempo- the suit or the application.
rary injunction is dismissed with costs. This dismissal
follows the striking out of the plaint leaving no sub-stract The plaint is struck out on both grounds with costs to be
for the application. In any event the application would paid to the defendant. The application filed by the plain-
have been dismissed because it does not comply with tiff on 27.11.89 seeking a temporary injunction is dis-
the conditions laid down in Order XXXIX which are missed with costs.
necessary to bring an application under the Order. Fur-
ther the undated affidavit in support of the application The grounds of objection to the preliminary point filed
does not comply with the provisions of Order XVIII of by the plaintiff on 4.12.89 are dismissed with costs. There
the Civil Procedure Rules. will be Orders accordingly.
In other words the application for a temporary injunction Dated and delivered at Nairobi this 11th day of Decem-
was a non-starter from the date of filing. ber 1989 in Court No.4.
N. DUGDALE
JUDGE
11.12.89
18
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case No.72 Of 1994
1. PROF. WANGARI MAATHAI )
2. PIUS JOHN NJOGU ) PLAINTIFFS
3. JOHN F. MAKANGA )
v.
1. CITY COUNCIL OF NAIROBI )
2. COMMISSIONER OF LANDS ) DEFENDANTS
3. MARKET PLAZA LIMITED )
RULING robi City Council is valid only for a year. The third
defedant’s title is guaranteed by the provisions of the
The plaintiffs sued the defendants and sought these dec- Registration of Titles Act Cap. 281 under which the title
larations:- has been issued. An injunction if granted will render the
provisions of the Registration of Title Act nugatory.
(a) That the subdivision, sale and transfer of L.R. 209/
1855/2 - L.R. 57271 is irregular and breached spe- The third defendant also filed the application dated
cial condition in the grant dated 1.8.1928. It is ultra 17.1.1994 for an injunction against the plaintiffs.
vires the powers of the first defendant which is Nai-
robi City Council. The second defendant filed an affidavit in which it is
deponed that the Nairobi City Council applied for the
(b) That the issuance of Certificates of Title by the Com- subdivision of the plot in question and the approval was
missioner of Lands is irregular and contrary to law. given in the normal way.
(c) The revocation of subdivision of Land Ref. 209/1855 In their grounds of opposition the plaintiffs said they do
- I.R. 2562 together with revocation of sale thereof. not intend to damage the plot in question save by way of
lawful litigation in courts of law. The third defendant
(d) An injunction to restrain the 3rd defendant from sell- alone had filed a defence. It denies breach of the 1928
ing or carrying out any construction work on L.R. special condition upon which the suit is based. It denies
209/1855/2. A chamber summons dated 7.1.1994 has a sale to it of the plot but claims a lawful allocation thereof
been filed in court and seeks an injunction against which conferred good title. In paragraph 16 of this de-
the third Defendant to restrain it from constructing fence it is pleaded:-
anything on the plot in question. It is supported by
the affidavit of the first plaintiff which swears that “This third defendant contends that the plaintiffs herein
the plot is in danger of being alienated. The plain- have no locus standi to bring the proceedings now be-
tiffs will be obstructed in execution of any decree fore the court and shall at the appropriate time move the
that they may obtain against the defendants if con- Honourable Court to strike out this suit”.
struction work is permitted to continue unabated.
There is also paragraph 19 which pleads:-
In its grounds of opposition dated 17.1.1994 the third
defendant denies that it is disposing off the plot and says, “The third defendant shall rely on the provisions of sec-
an injunction will cause hardship to the third defendant tion 23 of the Registration of Titles Act Cap 201 which
because the approval of the building plans by the Nai- provides inter alia, that the certificate of Title issued by
19
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
the Registrar to a purchaser of land upon a transfer shall had submitted that these elements of rate paying are un-
be taken by all courts as conclusive evidence that the supported because no amount of rate is indicated, when
person named therein as proprietor of the land is the in- paid, in respect of what property the plaintiffs are con-
defeasible owner thereof .... and the title to that proprie- cerned with. Even rate paying alone, does not entitle the
tor shall not be subject to challenge.” plaintiffs to sue unless they show that they stand to suf-
fer injury or damage over and above other rate payers if
There is of course section 24 of the Registration of Ti- the building is constructed. As pleaded in paragraph 19
tles Act which says that the remedy of a person aggrieved of the third defedant’s defence section 23 of the Regis-
by such registration as that of the 3rd defendant is in tration of Titles Act Cap 281 require that a certificate of
damages only. title issued by the Registrar to the purchaser upon trans-
fer shall be taken by all courts as conclusive evidence
As pleaded in paragraph 16 of the defence of the third that the person named therein as proprietor of the land is
defendant the time to raise the issue of locus standi, came the indefeasible owner thereof/and the title to that pro-
on 27.1.1994 when the point was taken by the third de- prietor shall not be subject to challenge.
fendant that the plaintiffs had no right to appear and be
heard in this case and their suit be struck out. For this This is however subject to encumbrances, easements,
proposition of lack of standing Mr. Muigua relied on the restrictions and conditions, contained or endorsed on such
House of Lords decision in GOURIET AND OTHERS certificate. There is the First of August 1928 special con-
Vs. H.M. ATTORNEY GENERAL AND UNION OF dition to which the third defendant says it has not been
POSTS OFFICE ENGINEERING UNION [sic] [1971] breached because the present plot L.R. 209/1855 - I.R.
AC 435 at Pages 437 Letter C: 2562 has been continually used as a municipal market,
but the portion now known as L.R. 209/1855/2 I.R. 57271
HELD: Allowing the appeals by the defendants and dis- has always been used as a parking area.
missing the plaintiff’s appeal.
In paragraphs 8 and 10 of the 3rd defendant’s defence it
(1) That save and in so far as the local Government Act is stated that the suit premises were not purchased by the
1972, section 222 gave local authorities a limited third defendant but allocated to it and made payment of
power to do so, only the Attorney General could sue KShs.2 million by way of stand premium as opposed to
on behalf of the public for the purpose of preventing any purchase price. In paragraph 9 of this defence fraud
public wrongs and that a private individual could not on the part of the defendants is denied in that the First
do so on behalf of the public, though he might be defendant, Nairobi City Council acted legally and within
able to do so if he would sustain injury as a result of its powers when it applied for the subdivision. It is said
a public wrong, for the courts had no jurisdiction to the third defendant is a stranger to the plaintiff’s allega-
entertain such claims by private individuals who had tions that the plaintiffs are aggrieved by the said alloca-
not suffered and would not suffer damage (Post pp. tion, subdivision and transfer to the third defendant of
481A. 494 F.G.) page 481. L.R. No. 209/1855/2. In that connection the third de-
fendant contends that the plaintiffs have no locus standi
But in the present case, the transgression of those limits to bring these proceedings.
inflicts no private wrong upon these plaintiffs and al-
though the plaintiffs, in common with the rest of the pub- On the basis of lack of standing and the provision of
lic might be interested in the larger view of the question section 23 of the Registration of Titles Act I was urged
yet the constitution of the country has wisely entrusted to hold that the plaintiffs had no right to sue, no right to
the privilege with a public officer, and has not allowed it appear, no right to be heard in these proceedings.
to be usurped by private individuals.
On the other hand Mr. Khaminwa for the plaintiffs, sub-
“That it is the exclusive right of the Attorney General to mitted in relation to the attack and lack of evidence of
represent the public interest even where individuals might details of rate paying, that they had intended to call oral
be interested in the larger view of the matter it is not evidence of this at the hearing of the application for in-
technical, not procedural, not fictional. It is constitutional. junction and the present preliminary point has come pre-
I agree with Lord Westbury L.C. that it is also wise”. maturely and at the wrong time because the 3rd defend-
ant must wait to give the plaintiffs the opportunity to
It was submitted on behalf of the third defendant that the show by oral evidence that the plaintiffs have a standing.
present case should have been brought by way of a rela- Mr. Khaminwa thinks the provision of section 23 cannot
tor action if the Attorney General saw it fit to do so. The be looked at this stage when dealing with whether the
plaintiffs have not shown that they suffer any private in- plaintiffs have a right to speak against an owner of a title
jury if the proposed multi storey car park building is built. registered under the Registration of Titles Act.
The basis of the plaintiff’s action is they allege that they
are rate payers in the City of Nairobi. The third defedant A number of authorities were cited by Mr. Khaminwa.
20
WANGARI MATHAI V C ITY C OUNCIL OF NAIROBI
One of this is the INLAND REVENUE COMMISSION- land is. As already stated that the title issued to the 3rd
ERS Vs. NATIONAL FEDERATION OF SELF EM- defendant herein cannot be challenged in the absence of
PLOYED [1985] AC 617 Page 653. the matters set out in section 23 of the Act. This is the
subject matter of the plaintiff’s complaint in respect
“Suffice it to refer to the judgement of Lord Parker C.J. whereof the third defendant has rightly raised a
in REG. Vs. Thames Magistrate’s Court ....” a cause of preliminary point that the applicants have no right to be
certiorari; and to the words of Lord Wilberforce in heard to challenge, whether as rate payers, the third
Gouriet Vs. Union of Post Office Workers [1978] AC defendant’s title. In my considered view there is no further
435, 482 where he stated the modern position in relation investigation required to ascertain what the subject of
to the prerogative orders: “These are often applied for the plaintiffs’ complaint is. It is there in their plaint, in
by individuals and the courts have allowed them liberal their chamber summons. At this stage the plaintiffs must
access under a generous conception of Locus Standi. The show, and they have failed to show, that there has been
one legal principle which is implicit in the case law and any failure of any public duty in which they alone have a
accurately reflected in the rule of court, is that in deter- unique interest as opposed to that of the public generally.
mining the sufficiency of an applicant’s interest it is nec-
essary to consider the matter to which the application I have been referred to a passage in Wade, Administra-
relates. It is wrong in law, as I understand the cases, for tive Law which in itself cries for answer. In the Lord
the court to attempt an assessment of the sufficiency of Denning book: “The Judge and the Law” I was referred
an applicant’s interest without regard to the matter of his to a passage like that of the Inland Revenue Commis-
complaint. If he fails to show, when he applies for leave, sioner’s case which deals with: “Exceptions had been
a prima facie case, or reasonable grounds for believing made, particularly in applications for certiorari or prohi-
that there has been a failure of public duty, the court bition, but by and large standing was narrowly con-
would be in error if it granted leave. The limb repre- strued”. The plaintiffs are not before the court on any
sented by the need for an applicant to show, when he matter of certiorari or prohibition but by way of an ordi-
seeks leave to apply, that he has such a case is an essen- nary suit by plaint restricted by the nature of the statute
tial protection against abuse of legal process. It enables law in Kenya and restricted by their own interest in the
the court to prevent abuse by busy bodies, cranks, and subject matter of complaint namely as rate payers which
other mischief makers. I do not see any further purpose they have not been able to make out a case.
served by the requirement for leave”.
I am therefore satisfied that the plaintiffs have no locus
According to the plaintiffs the matter of their complaint standi in this case and they should not be heard. Accord-
here is the subdivision, allocation and transfer and ingly the plaintiff’s suit is struck out as urged in the pre-
registration of the suit premises in the name of the third liminary objection. The plaintiffs will pay all the defend-
defendant. The sufficiency of the plaintiffs’ interest must ants the costs of this suit.
be looked at with regard to the kind of premises the suit
Delivered this 17th day of March 1994
in the presence of:
Khaminwa for the plaintiffs absent
Kinyua for the 1st defendant
Miss Kimani for the 2nd defendant
Mr. Muigua for the 3rd defendant.
(M. OLE KEIWUA)
JUDGE
21
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA
JUAN ANTONIO, ANNA ROSARIO and G.R. No. 101083
JOSH ALFONSO, all surnamed OPOSA, minors and repre-
sented by their parents ANTONIO and RIZALINA OPOSA
ROBERTA NICOLE SADIUA, minor, represented by her par-
ents CALVIN and ROBERTA SADIUA,
CARDO, AMANDA SALUD and PATRISHA, all surnamed
FLORES, minors and represented by their parents ENRICO
and NIDA FLORES,
GIANINA DITA R. FORTUN, minor, represented by her par-
ents SIGRIFD and DOLORES FORTUN,
GEORGE II and MA. CONCEPCION, all surnamed MISA, mi-
nors and represented by their parents GEORGE and MYRA
MISA,
BENJAMIN ALAN V. PESIGNA, minor, represented by his
parents ANTONIO and ALICE PESIGAN,
JOVIK MARIE ALFARO, minor, represented by her parents
JOSE and MARIA VIOLETA
A L FA R O ,
MARIA CONCEPCION T. CASTRO, minor,
represented by her parents JOSE and ANGELA
D E S A M PA R A D O ,
CARLO JOAQUIN T. NARVASA, minor represented by his
parents GREGORIO II and CRISTINE CHARITY NARVASA,
22
MA MARGARITA, JESUS IGNACIO, MA ANGELA and
MARIE GABIELLE, all surnamed SAENZ, minor, represented
by their parents ROBERTO and AURORA
SAENZ.
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their par-
ents MARIO and HAYDEE KING.
DAVID FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA.
JOSE MA. and REGINA MA., all surnamed ABAYA, minors,
represented by their parents ANTONIO and MARICA
A B AY A ,
MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO
and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL and IMRE
LYN, all surnamed OPOSA, minors and represented by their
parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents
JOSE MAX and VIIMI QUIPIT,
BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRAN-
CISCO, all surnamed BIBAL, minors, represented by their
parents FRANSCICO, JR. and MILAGROS BIBAL, and
THE PHILLIPINE ECOLOGICAL NETWORK, INC..
Pe t i t i o n e r s
v.
23
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his ca-
pacity as the Secretary of the Department of Environment
and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, presiding Judge of the RTC, Makati, Branch 66,
— Respondents
AUGUST 9, 1993
NOTICE OF JUDGMENT
Sir:
Please take notice that on JULY 30, 1993, decision/resolution, copy attached, was rendered by the Supreme Court in
the above-entitled case the original of which is now on file in this office.
Respectfully,
DANIEL T. MARTINEZ
Clerk of Court
By: LUZVIMINDA D. PUNO
Assistant Clerk of Court
DAVID FRANCISCO and THERESE VICTORIA,
all surnamed ENDRIGA, minors, represented by their par-
ents BALTAZAR and TERESITA ENDRIGA.
JOSE MA. and REGINA MA., all surnamed ABAYA, minors,
represented by their parents ANTONIO and MARICA
A B AY A ,
MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO
and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL and IMRE LYN, all sur-
named OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents
JOSE MAX and VIIMI QUIPIT,
24
BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by
their parents FRANSCICO, JR. and MILAGROS BIBAL,
and THE PHILLIPINE ECOLOGICAL NETWORK,
INC. — Petitioners
Present: NARVASA, C.J.,1 CRU FELICIANO, PADILLA, BIDIN, S.GRISO AQUINO,
REGALADO, DAVIDE, JR., ROMERO, NOCON, BELLOSILLO, MELO QUIASON,
PUNO, and VITUG, J.J.
v.
THE HONORABLE FULGENCIO, FACTORAN, JR.,
in his capacity as the Secretary of the Department of Envi-
ronment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC,
Makati, Branch 66 — Respondents
DECISION engaging in concerted action geared for the protection
of our environment and natural resources. The original
DAVIDE, JR., J.: defendant was the Honorable Fulgencio S. Factoran, Jr.,
then Secretary of the Department of Environment and
In a broader sense, this petition bears upon the right of Natural Resources (DENR). His substitution in this pe-
Filipinos to a balanced and healthful ecology which the tition by the new Secretary, the Honorable Angel C.
petitioners dramatically associate with the twin concepts Alcala, was subsequently ordered upon proper motion
of “inter-generational responsibility” and “inter- by the petitioners. The complaint 2 was instituted as a
generational justice”. Specifically, it touches on the is- taxpayers’ class suit3 and alleges that the plaintiffs “are
sue of whether the said petitioners have a cause of action all citizens of the Republic of the Philippines, taxpay-
to “prevent the misappropriation or impairment” of Phil- ers, and entitled to the full benefit, use and enjoyment
ippine rainforests and “arrest the unabated hemorrhage of the natural resource treasure that is the country’s vir-
of the country’s vital life-support systems and continued gin tropical rainforests.” The same was filed for them-
rape of Mother Earth.” selves and others who are equally concerned abut the
preservation of said resource but are “so numerous that
The controversy has its genesis in Civil Case No. 90- it is impracticable to bring them all before the Court.”
777 which was filed before Branch 66 (Makati, Metrol The minors further asseverate that they “represent their
Manila) of the Regional Trial Court (RTC), National generation as well as generations yet unborn.”5 Conse-
Capital Judicial Region. The principal plaintiffs therein, quently, it is prayed for that judgment be rendered:
now the principal petitioners are all minors duly repre-
sented and joined by their respective parents. Impleaded “x x x ordering defendant, his agents, representatives
as an additional plaintiff is the Philippine Ecological and other persons acting in his behalf to —
Network, Inc. (PENI), a domestic, non-stock and non-
profit corporation organized for the purpose of, inter alia, (1) Cancel all existing timber license agreements in
the country;
1
No part; related to one of the petitioners.
2
Rollo, 164; 186.
3
Id., 62-65, exclusive of annexes.
4
Under Section 12, Rule 3, Revised Rules of Court.
5
Rollo, p.67.
25
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
(2) Cease and desist from receiving, accepting, Plaintiffs further assert that the adverse and detrimental
processing, renewing or approving new timber license consequences of continued deforestation are so capable
agreements.” of unquestionable demonstration that the same may be
And granting the plaintiffs “x x x” such other reliefs just submitted as a matter of judicial notice. This notwith-
and equitable under the premises.” 6 standing, they expressed their intention to present ex-
pert witnesses as well as documentary, photographic and
The complaint starts off with the general averments that film evidence in the course of the trial.
the Philippine archipelago of 7,100 islands has a land
area of thirty million (30,000,000) hectares and is en- As their cause of action, they specifically allege that:
dowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may “CAUSE OF ACTION
be found: these rainforests contain a genetic, biological
and chemical pool which is irreplaceable; they are also 7. Plaintiffs replead “by reference the foregoing alle-
the habitat of indigenous Philippine cultures which have gations.
existed, endured and flourished since time immemorial;
scientific evidence reveals that in order to maintain a 8. Twenty-five (25) years ago, the Philippines had some
balanced and healthful ecology, the country’s land area sixteen (16) million hectares of rainforests consti-
should be utilized on the basis of a ratio of fifty-four per tuting roughly 53% of the country’s land mass.
cent (54%) for forest cover and forty-six per cent (46%)
for agricultural, residential, industrial, commercial and 9. Satellite images taken in 1987 reveal that there re-
other uses; the distortion and disturbance of this balance mained no more than 1.2 million hectares of said
as a consequence of deforestation have resulted in a host rainforests or four per cent (4.0%) of the country’s
of environmental tragedies, such as (a) water shortages land area.
resulting from the drying up of the water table, other-
wise known as the “aquifer,” as well as of rivers, brooks 10. More recent surveys reveal that a mere 850,000 hec-
and streams, (b) salinization of the water table as a re- tares of virgin old-growth rainforests are left, barely
sult of the intrusion therein of salt water, incontrovert- 2.8% of the entire land mass of the Philippine archi-
ible examples of which may be found in the island of pelago and about 3.0 million hectares of immature
Cebu and Municipality of Racoor, Cavite, (c) massive and uneconomical secondary growth forests.
erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded 11. Public records reveal that defendant’s predecessors
estimated at one billion (1,000,000,000) cubic meters per have granted timber license agreements (“TLA’s”)
annum — approximately the size of the entire island of to various corporations to cut the aggregate area of
Catanduanes, (d) the endangering and extinction of the 3.89 million hectares for commercial logging pur-
country’s unique, rare and varied flora and fauna, (e) the poses.
disturbance and dislocation of cultural communities, in-
cluding the disappearance of the Filipino’s indigenous A copy of the TLA holders and the corresponding
cultures, (f) the siltation, of rivers and seabeds and con- areas covered is hereto attached as Annex “A”.
sequential destruction of corals and other aquatic life
leading to a critical reduction in marine resource pro- 12. At the present rate of deforestation, i.e. about 200,000
ductivity, (g) recurrent spells of drought as is presently hectares per annum or 25 hectares per hour —
experienced by the entire country, (h) increasing veloc- nighttime, Saturdays, Sundays and holidays included
ity of typhoon winds which result from the absence of — the Philippines will be bereft of forest resources
windbreakers, (i) the flooding of lowlands and agricul- after the end of this ensuing decade, if not earlier.
tural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of 13. The adverse effects, disastrous consequence, seri-
the lifespan of multi-billion peso dams constructed and ous injury and irreparable damage of this continued
operated for the purpose of supplying water for domes- trend of deforestation to the plaintiff minors’ gen-
tic uses, irrigation and the generation of electric power, eration and to generations yet unborn are evident and
and (k) the reduction of the earth’s capacity to process incontrovertible. As a matter of fact, the environmen-
carbon dioxide gases which has led to perplexing and tal damages enumerated in paragraph 6 hereof are
catastrophic climatic changes such as the phenomenon already being felt, experienced and suffered by the
of global warming, otherwise known as the “greenhouse generation of plaintiff adults.
effect.”
6
Id., 74.
26
OPOSA V FACTORAN
14. The continued allowance by defendant of TLA that is conducive to a life of dignity and well-be-
holders to cut and deforest the remaining forest ing”. (F.D. 1151, 6 June 1977)
stands will work great damage and irreparable injury
to plaintiffs — especially plaintiff minors and their 20. Furthermore, defendant’s continued refusal to can-
successors — who may never see, use, benefit from cel the aforementioned TLA’s is contradictory to the
and enjoy this rare and unique natural resource Constitutional policy of the State to —
treasure.
a. effect “a more equitable distribution of opportunities,
This act of defendant constitutes a misappropriation and/ income and wealth” and “make full and efficient use
or impairment of the natural resource property he holds of natural resources (sic), (Section 1, Article XII of
in trust for the benefit of plaintiff minors and succeeding the Constitution);
generations.
b. “protect the nation’s marine wealth.” (Section 2,
15. Plaintiffs have a clear and constitutional right to a Ibid);
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens c. “conserve and promote the nation’s cultural heritage
patriae. and resources (sic),” (Section 14, Article XIV, id.);
16. Plaintiffs have exhausted all administrative remedies d. “protect and advance the right of the people to a bal-
with the defendant’s office. On March 2, 1990, plain- anced and healthful ecology in accord with the
tiffs served upon defendant a final demand to cancel rhythm and harmony of nature.” (Section 16, Article
all logging permits in the country. II, id.)
A copy of the plaintiffs’ letter dated March 1, 1990 is 21. Finally, defendant’s act is contrary to the highest law
hereto attached as Annex “B”. of humankind — the natural law — and violative of
plaintiffs’ right to self-preservation and perpetuation.
17. Defendant, however, fails and refuses to cancel the
existing TLA’s, to the continuing serious damage and 22. There is no other plain, speedy and adequate remedy
extreme prejudice of plaintiffs. in law other than the instant action to arrest the una-
bated hemorrhage of the country’s vital life - support
18. The continued failure and refusal by defendant to systems and continued rape of Mother Earth.”7
cancel the TLA’s is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left On 22 June 1990, the original defendant, Secretary
with a country that is desertified (sic), bare, barren Factoran, Jr., filed a Motion to Dismiss the complaint
and devoid of the wonderful flora, fauna and indig- based on two (2) grounds, namely: (1) the plaintiffs have
enous cultures which the Philippines has been abun- no cause of action against him and (2) the issue raised
dantly blessed with. by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Gov-
19. Defendant’s refusal to cancel the aforementioned ernment. In their 12 July 1990 Opposition to the Mo-
TLA’s is manifestly contrary to the public policy tion, the petitioners maintain that (1) the complaint shows
enunciated in the Philippine Environmental Policy a clear and unmistakable cause of action, (2) the motion
which, in pertinent part, states that it is the policy of is dilatory and (3) the action presents a justiciable ques-
the State — tion as it involves the defendant’s abuse of discretion.
(a) to create, develop, maintain and improve conditions On 18 July 1991, respondent Judge issued an order grant-
under which man and nature can thrive in produc- ing the aforementioned motion to dismiss.8 In the said
tive and enjoyable harmony with each other; order, not only was the defendant’s claim — that the
complaint states no cause of action against him and that
(b) to fulfill the social, economic an other requirements it raises a political question — sustained, the respondent
of present and future generations of Filipinos and; Judge further ruled that the granting of the reliefs prayed
for would result in the impairment of contracts which is
(c) to ensure the attainment of an environmental quality prohibited by the fundamental law of the land.
7
Rollo, p.73.
8
Annex “B” of Petition: Id., 43-44.
27
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Plaintiffs thus filed the instant special civil action for theory that the question of whether logging should be
certiorari under Rule 65 of the Revised Rules of Court permitted in the country is a political question which
and ask this Court to rescind and set aside the dismissal should be properly addressed to the executive or legisla-
order on the ground that the respondent Judge gravely tive branches of Government. They therefore assert that
abused his discretion in dismissing the action. Again, the the petitioners’ recourse is not to file an action in court,
parents of the plaintiffs-minors not only represent their but to lobby before Congress for the passage of a bill
children, but have also joined the latter in this case.9 that would ban logging totally.
On 14 May 1992, we resolved to give due course to the As to the matter of the cancellation of the TLAs,
petition and required the parties to submit their respec- respondents submit that the same cannot be done by the
tive Memoranda after the Office of the Solicitor General State without due process of law. Once issued, a TLA
(OSG) filed a Comment in behalf of respondents and the remains effective for a certain period of time — usually
petitioners filed a reply thereto. for twenty-five (25) years. During its effectivity, the same
can neither be revised nor cancelled unless the holder has
Petitioners contend that the complaint clearly and un- been found, after due notice and hearing to have violated
mistakably states a cause of action as it contains suffi- the terms of the agreement or other forestry laws and
cient allegations concerning their right to a sound envi- regulations. Petitioners’ proposition to have all the TLAs
ronment based on Articles 19, 20 and 21 of the Civil indiscriminately cancelled without the requisite hearing
Code (Human Relations), Section 4 of Executive Order would be violative of the requirements of due process.
(E.O.) No. 192 creating the DENR, Section 3 of Presi-
dential decree (P.D.) No. 1151 (Philippine Environmen- Before going any further, we must first focus on some
tal Policy), Section 16, Article II of the 1987 Constitu- procedural matters. Petitioners instituted Civil Case No
tion recognizing the right of the people to a balanced 90-777 as a class suit. The original defendant and the
and healthful ecology, the concept of generational geno- present respondents did not take issue with this matter.
cide in Criminal Law and the concept of man’s inalien- Nevertheless, we hereby rule that the said civil case is
able right to self-preservation and self-perpetuation em- indeed a class suit. The subject matter of the complaint
bodied in natural law; Petitioners likewise rely on the is of common and general interest not just to several, but
respondent’s correlative obligation, per Section 4 of E.O. to all citizens of the Philippines. Consequently, since the
No. 192, to safeguard the people’s right to a healthful parties are so numerous, it becomes impracticable, if not
environment. totally impossible, to bring all of them before the court.
We likewise declare that the plaintiffs therein are
It is further claimed that the issue of the respondent numerous and representative enough to ensure the full
Secretary’s alleged grave abuse of discretion in granting protection of all concerned interests. Hence, all the
Timber License Agreements (TLAs) to cover more areas requisites for the filing of a valid class suit under Section
for logging than what is available involves a judicial 12, Rule 3 of the Revised Rules of Court are present both
question. in the said civil case and in the instant petition, the latter
being but an incident to the former.
About the invocation by the respondent Judge of the
Constitution’s non-impairment clause; petitioners main- This case, however, has a special and novel element.
tain that the same does not apply in this case because Petitioners minors assert that they represent their
TLAs are not contracts. They likewise submit that even generation as well as generations yet unborn. We find no
if TLAs may be considered protected by the said clause, difficulty in ruling that they can, for themselves, for others
it is well settled that they may still be revoked by the of their generation and for the succeeding generations,
State when public interest so requires. file a class suit. Their personality to use on behalf of the
succeeding generations can only be based on the concept
On the other hand, the respondents aver that the peti- of intergenerational responsibility insofar as the right to
tioners failed to allege in their complaint a specific legal a balanced and healthful ecology is concerned. Such a
right violated by the respondent Secretary for which any right, as hereinafter expounded, considers the “rhythm
relief is provided by law. They see nothing in the com- and harmony of nature.” Nature means the created world
plaint but vague and nebulous allegations concerning an in its entirety.10 Such rhythm and harmony indispensably
“environmental right” which supposedly entitles the pe- include, inter alia, the judicious disposition, utilization,
titioners to the “protection by the state in its capacity as management, renewal and conservation of the country’s
parens patriae.” Such allegations, according to them, do forest, mineral, land, waters, fisheries, wildlife, off-shore
not reveal a valid cause of action. They then reiterate the areas and other natural resources to the end that their
9
Paragraph 7, Petiton, 6; Rollo, 20.
10
Webster’s Third New International Dictionary, unabridged, 1986, 1508.
28
OPOSA V FACTORAN
exploration, development and utilization be equitably plaintiffs failed to allege with sufficient definiteness a
accessible to the present as well as future generations.11 specific legal right involved or a specific legal wrong
Needless to say, every generation has a responsibility to committed, and that the complaint is replete with vague
the next to preserve that rhythm and harmony for the full assumptions and conclusions based on unverified data.
enjoyment of a balanced and healthful ecology. But a A reading of the complaint itself belies these conclusions.
little differently, the minors’ assertion of their right to a
sound environment constitutes, at the same time, the The complaint focuses on one specific fundamental le-
performance of their obligation to ensure the protection gal right — the right to a balanced and healthful ecology
of that right for the generations to come. which, for the first time in our nation’s constitutional
history, is solemnly incorporated in the fundamental law.
The locus standi of the petitioners having thus been Section 16, Article II of the 1987 Constitution explicitly
addressed. We shall now proceed to the merits of the provides:
petition.
“SEC. 16. The State shall protect and advance the right
After a careful perusal of the complaint in question and of the people to a balanced and healthful ecology in
a meticulous consideration and evaluation of the issues accord with the rhythm and harmony of nature.”
raised and arguments adduced by the parties, we do not This right unites with the right to health which is provided
hesitate to find for the petitioners and rule “against the for in the preceding section of the same article.
respondent Judge’s challenged order for having been
issued with grave abuse of discretion amounting to lack “SEC. 15. The State shall protect and promote the right
of jurisdiction. The pertinent portions of the said order to health of the people and instill health consciousness
read as follows: among them.”
While the right to a balanced and healthful ecology is to
xxxx be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not
“After a careful and circumspect evaluation of the Com- follow that it is less important than any of the civil and
plaint, the Court cannot help but agree with the defend- political rights enumerated in the latter. Such a right
ant. For although we believe that plaintiffs have but the belongs to a different category of rights altogether for it
noblest of all intentions, it (sic) fell short of alleging, concerns nothing less than self-preservation and self-
with sufficient definiteness, a specific legal right they perpetuation — aptly and fittingly stressed by the
are seeking to enforce and protect, or a specific legal petitioners — the advancement of which may even be
wrong they are seeking to prevent and redress (Sec. 1, said to predate all governments and constitutions. As a
Rule 2, RRC). Furthermore, the Court notes that the matter of fact, these basic rights need not even be written
Complaint is replete with vague assumptions and vague in the Constitution for they are assumed to exist from
conclusions based on unverified data. In fine, plaintiffs the inception of humankind. If they are now explicitly
fail to state a cause of action in its Complaint against the mentioned in the fundamental charter, it is because of
herein defendant, [sic] the well-founded fear of the framers that unless the rights
to a balanced and healthful ecology and to health are
Furthermore, the Court firmly believes that the matter mandated as state policies by the Constitution itself,
before it, being impressed with political color and in- thereby highlighting their continuing importance and
volving a matter of public policy, may not be taken imposing upon the state a solemn obligation to preserve
cognizance of by this Court without doing violence to the first and protect and advance the second, the day
the sacred principle of “Separation of Powers” of the
would not be too far when all else would be lost not only
three (3) co-equal branches of the Government.
for the present generation, but also for those to come —
The Court is likewise of the impression that it cannot, generations which stand to inherit nothing but parched
no matter how we stretch our jurisdiction, grant the earth incapable of sustaining life.
reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and The right to a balanced and healthful ecology carries with
to cease and desist from receiving, accepting, process-
it the correlative duty to refrain from impairing the envi-
ing renewing or approving new timber license agree-
ments. For to do otherwise would amount to “impair- ronment. During the debates on this right in one of the
ment of contracts” abhored (sic) by the fundamental plenary sessions of the 1986 Constitutional Commission,
law.”12 the following exchange transpired between Commis-
sioner Wilfrido Villacorta and Commissioner Adolfo
We do not agree with the trial court’s conclusion that the Azcuna who sponsored the function in question:
11
Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of 1987, E.O. No. 292.
12
Annex “B” of Petition: Rollo, 43-44.
29
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
“MR. VILLACORTA: cifically in Section 1 thereof which reads:
Does this section mandate the State to provide sanc- “SEC.1. Decl aration of Policy. — (1) The State shall
tions against all forms of pollution — air, water and ensure, for the benefit of the Filipino people, the full
noise pollution? exploration and development as well as the judicious
MR. AZCUNA: disposition, utilization, management, renewal and con-
servation of the country’s forest, mineral, land, wa-
ters, fisheries, wildlife, off-shore areas and other natu-
Yes, Madam President. The right to healthful (sic) en-
ral resources, consistent with the necessity of main-
vironment necessarily carries with it the correlative
taining a sound ecological balance and protecting and
duty of not impairing the same and, therefore, sanc-
enhancing the quality of the environment and the ob-
tions may be provided for impairment of environmen-
jective of making the exploration, development and
tal balance.” 13
utilization of such natural resources equitably accessi-
The said right implies, among many other things, the ble to the different segments of the present as well as
judicious management and conservation of the country’s future generations.
forests. Without such forests, the ecological or environ- (2) The State shall likewise recognize and apply a true
mental balance would be irreversibly disrupted. value system that takes into account social and envi-
ronmental cost implications relative to the utilization,
Conformably with the enunciated right to a balanced and development and conservation of our natural re-
sources.”
healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning The above provision stresses “the necessity of maintain-
the conservation, development and utilization of the coun- ing a sound ecological balance and protecting and en-
try’s natural resources, 14 then President Corazon C. hancing the quality of the environment.” Section 2 of the
Aquino promulgated on 10 June 1987 E.O. No. 192,15 same Title, on the other hand, specifically speaks of the
Section 4 of which expressly mandates that the Depart- mandate of the DENR; however, it makes particular refer-
ment of Environment and Natural Resources “shall be ence to the fact of the agency’s being subject to law and
the primary government agency responsible for the con- higher authority. Said section provides:
servation, management, development and proper use of
the country’s environment and natural resources, specifi- “SEC.2, mandate. — (1) The Department of Environ-
cally forest and grazing lands, mineral resources, includ- ment and Natural Resources shall be primarily respon-
ing those in reservation and watershed areas, and lands sible for the implementation of the foregoing policy.
of the public domain, as well as the licensing and regu- (2) It shall, subject to law and higher authority, be in
lation of all natural resources as may be provided for by charge of carrying out the State’s constitutional man-
law in order to ensure equitable sharing of the benefits date to control and supervise the exploration, develop-
derived therefrom for the welfare of the present and fu- ment, utilization, and conservation of the country’s
natural resources.”
ture generations of Filipinos.” Section 3 thereof makes
the following statement of policy: Both E.O. No. 192 and the Administrative Code of 1987
have set the objectives which will serve as the bases for
“SEC.3. Declaration of Policy. — It is hereby declared policy formulation, and have defined the powers and
the policy of the State to ensure the sustainable use, functions of the DENR.
development, management, renewal, and conservation
of the country’s forest, mineral, land, off-shore areas It may, however, be recalled that even before the notifi-
and other natural resources, including the protection
cation of the 1987 Constitution, specific statutes already
and enhancement of the quality of the environment,
and equitable access of the different segments of the paid special attention to the “environmental right” of the
population to the development and use of the coun- present and future generations. On 6 June 1977, P.D. No.
try’s natural resources; not only for the present gen- 1151 (Philippine Environmental Policy) and P.D. No.
eration but for future generations as well. It is also the 1152 (Philippine Environment Code) were issued. The
policy of the state to recognize and apply a true value former “declared a continuing policy of the State (a) to
system including social and environmental cost impli- create, develop, maintain and improve conditions under
cations relative to their utilization, development and which man and nature can thrive in productive and en-
conservation of our natural resources.” joyable harmony with each other, (b) to fulfil the social,
This policy declaration is substantially re-stated in Title economic and other requirements of present and future
XIV, Book IV of the Administrative Code of 1987,16 spe- generations of Filipinos, and (c) to insure the attainment
13
Record of the Constitutional Commission, Vol. 4, 913.
14
For instance, the Preamble and Article XII on the National Economy and Patrimony.
15
The Reorganisation Act of the Department of Environment and Natural Resources
16
E.O. No. 292.
30
OPOSA V FACTORAN
of an environmental quality that is conducive to a life of or recognizes is effectively nullified. If that happens, there
dignity and well-being.” 17 As its goal, it speaks of the is a blot on the legal order. The law itself stands in disre-
“responsibilities of each generation as trustee and guard- pute.”
ian of the environment for succeeding generations.”18 The
latter statute, on the other hand, gave flesh to the said After a careful examination of the petitioners’ complaint,
policy: we find the statements under the introductory affirma-
tive allegations, as well as the specific averments under
Thus, the right of the petitioners (and all those they rep- the sub-heading CAUSE OF ACTION, to be adequate
resent) to a balanced and healthful ecology is as clear as enough to show, prima facie, the claimed violation of
the DENR’s duty — under its mandate and by virtue of their rights. On the basis thereof, they may thus be
its powers and functions under E.O. No. 192 and the granted, wholly or partly, the reliefs prayed for. It bears
Administrative Code of 1987 — to protect and advance stressing, however, that insofar as the cancellation of the
the said right. TLAs is concerned, there is the need to implead, as party
defendants, the grantees thereof for they are indispensa-
A denial or violation of that right by the other who has ble parties.
the correlative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners main- The foregoing considered, Civil Case No. 90-777 can-
tain that the granting of the TLAs, which they claim was not be said to raise a political question. Policy formula-
done with grave abuse of discretion, violated their right tion or determination by the executive or legislative
to a balanced and healthful ecology; hence, the full pro- branches of Government is not squarely put in issue. What
tection thereof requires that no further TLAs should be is principally involved is the enforcement of a right vis-
renewed or granted. a-vis policies already formulated and expressed in legis-
lation. It must, nonetheless, be emphasized that the po-
A cause of action is defined as: litical question doctrine is no longer the insurmountable
obstacle to the exercise of judicial power or the impen-
“x x x an act or omission of one party in violation of etrable shield that protects executive and legislative ac-
the legal right or rights of the other; and its essential tions from judicial inquiry or review. The second para-
elements are legal right of the plaintiff, correlative ob- graph of section 1, Article VIII of the Constitution states
ligation of the defendant, and act or omission of the that:
defendant in violation of said legal right.” 19
It is settled in this jurisdiction that in a motion to dismiss “Judicial power includes the duty of the courts of jus-
based on the ground that the complaint fails to state a tice to settle actual controversies involving rights which
cause of action,20 the question submitted to the court for are legally demandable and enforceable, and to deter-
resolution involves the sufficiency of the facts alleged in mine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction
the complaint itself. No other matter should be consid-
on the part of any branch or instrumentality of the Gov-
ered; furthermore, the truth or falsity of the said allega- ernment.”
tions is beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved Commenting on this provision in his book, Philippine
in such a case is: admitting such alleged facts to be true, Political Law,23 Mr. Justice Isagani A. Cruz, a distin-
may the court render a valid judgment in accordance with guished member of this Court, says:
the prayer in the complaint? 21 In Militante vs.
Edrosolano,22 this Court laid down the rule that the judi- “The first part of the authority represents the traditional
ciary should “exercise the utmost care and circumspec- concept of judicial power, involving the settluement
tion in passing upon a motion to dismiss on the ground of conflicting rights as conferred by law. The second
of the absence hereof [cause of action] lest, by its failure part of the authority represents a broadening of judi-
cial power to enable the courts of justice to review what
to manifest a correct appreciation of the facts alleged
was before forbidden territory, to wit, the discretion of
and deemed hypothetically admitted, what the law grants the political departments of the government.
17
Section 1.
18
Section 2.
19
Ma-ao Sugar Central Co., vs Barrios, 79 Phil. 666 [1947]; Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951];
Remitere vs. vda. de Yulo, 16 SCRA 251 [1966]; Carenas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayana, 202 SCRA 680 [1991];
Madrona vs. Rosal, 204 SCRA 1 [1991].
20
Section 1(q), Rule 16, Revised Rules of Court.
21
Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayan, supra,; Madrona vs. Hosal, supra.
22
39 SCRA 473, 479 [1971].
23
1991 ed., 226-227.
31
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
As worded, the new provision vests in the judiciary, “x x x Provided, That when the national interest so
and particularly the Supreme Court, the power to rule requires, the President may amend, modify, replace or
upon even the wisdom of the decisions of the execu- rescind any contract, concession, permit, licenses or
tive and the legislature and to declare their acts invalid any other form of privilege granted herein x x x.
for lack of excess of jurisdiction because tainted with
Needless to say, all licenses may thus be revoked or re-
grave abuse of discretion. The catch, of course, is the
meaning of grave abuse of discretion, which is a very scinded by executive action. It is not a contract, property
elastic phrase that can expand or contract according to or a property right protected by the due process clause
the disposition of the judiciary.” of the Constitution. In Tan vs Director of Forestry,26 this
Court held:
In Daza vs. Singson,24 Mr. Justice Cruz, now speaking
for the Court, noted: “x x x A timber license is an instrument by which the
State regulates the utilization and disposition of forest
“In the case now before us, the jurisdictional objec- resources to the end that public welfare is promoted. A
tion becomes even less tenable and decisive. The rea- timber license is not a contract within the purview of
son is that, even if we were to assume that the issue the due process clause; it is only a license or privilege,
presented before us was political in nature, we would which can be validly withdrawn whenever dictated by
still not be precluded from resolving it under the ex- public interest or public welfare as in this case.
panded jurisdiction conferred upon us that now cov-
“A license is merely a permit or privilege to do what
ers, in proper cases, even the political question. Arti-
otherwise would be unlawful, and is not a contract be-
cle VII, Section 1, of the Constitution clearly provides:
tween the authority, federal, state, or municipal, grant-
x x x.”
ing it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested
The last ground invoked by the trial court in dismissing
right; nor ...taxation (37 CIJ.168). Thus, this Court held
the complaint is the non-impairment of contracts clause that the granting of license does not create irrevocable
found in the Constitution. The court a quo declared that: rights, neither is it property or property rights (People
vs. Ong.. 54 O.G. 7576). x x x “
“The Court is likewise of the impression that it can-
not, no matter how we stretch our jurisdiction, grant We reiterated this pronouncement in Felipe Yamael, Jr.
the reliefs prayed for by the plaintiffs, i.e., to cancel & Co., Inc. vs. Deputy Executive Secretary:27
all existing timber license agreements in the country
and to cease and desist from receiving, accepting,
“x x x Timber licenses, permits and license agreements
processing, renewing or approving new timber license
are the principal instruments by which the State regu-
agreements. For to do otherwise would amount to “im-
lates the utilization and disposition of forest resources
pairment of contracts” abhored (sic) by the fundamen-
to the end that public welfare is promoted. And it can
tal law.”25
hardly be gainsaid that they merely evidence a privi-
lege granted by the State to qualified entities, and do
We are not persuaded at all; on the contrary, we are not vest in the latter a permanent or irrevocable right
amazed, if not shocked, by such a sweeping pronounce- to the particular concession area and the forest prod-
ment. In the first place, the respondent Secretary did not, ucts therein. They may be validly amended, modified,
for obvious reasons, even invoke in his motion to dis- replaced or rescinded by the Chief Executive when
miss the non-impairment clause. If he had done so, he national interests so require. Thus, they are not deemed
would have acted with utmost infidelity to the Govern- contracts within the purview of the due process of law
ment by providing undue and unwarranted benefits and clause [See sections 3(ee) and 20 of Pres. Decree No.
advantages to the timber license holders because he 705, as amended, “Also, Tan v. Director of Forestry,
G.R. No L-24548, October 27, 1983, 125 SCRA 302].”
would have forever bound the Government to strictly
respect the said licenses according to their terms and Since timber licenses are not contracts, the non-impair-
conditions regardless of changes in policy and the de- ment clause, which reads:
mands of public interest and welfare. He was aware that
as correctly pointed out by the petitioners, into every tim- “SEC. 10, No law impairing the obligation of contracts
ber license must be read Section 20 of the Forestry Re- shall be passed.” 28
form Code (P.D. No.705) which provides:
24
180 SCRA 496, 501-502 [1989]. See also, Coseteng v. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas
vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 2202, 44.
25
Rollo, 44.
26
125 SCRA 302, 325 [1983].
27
190 SCRA 673, 684 [1990].
28
Article III, 1987 Constitution.
32
OPOSA V FACTORAN
cannot be invoked. “Under our form of government the use of property
and the making of contracts are normally matters of
In the second place, even if it is to be assumed that the private and not of public concern. The general rule is
same are contracts, the instant case does not involve a that both shall be free of governmental interference.
But neither property rights nor contract rights are ab-
law or even an executive issuance declaring the cancel-
solute; for government cannot exist if the citizen may
lation or modification of existing timber licenses. Hence, at will use his property to the detriment of his fellows,
the non-impairment clause cannot as yet be invoked. or exercise his freedom of contract to work them harm.
Nevertheless, granting further that a law has actually been Equally fundamental with the private right is that of
passed mandating cancellations or modifications, the the public to regulate it in the common interest.”
same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature In short, the non-impairment clause must yield to the
and purpose, such a law could have only been passed in police power of the state. 32
the exercise of the police power of the state for the pur-
pose of advancing the right of the people to a balanced Finally, it is difficult to imagine, as the trial court did,
and healthful ecology, promoting their health and en- how the non-impairment clause could apply with respect
hancing the general welfare. In Aba vs. Foster Wheeler to the prayer to enjoin the respondent Secretary from
Corp.,29 this Court stated: receiving, accepting, processing, renewing or approving
new timber licenses for, save in cases of renewal, no con-
“The freedom of contract, under our system of gov- tract would have as of yet existed in the other instances.
ernment, is not meant to be absolute. The same is un- Moreover, with respect to renewal, the holder is not en-
derstood to be subject to reasonable legislative regula- titled to it as a matter of right.
tion aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional
WHEREFORE, being impressed with merit, the instant
guaranty of non-impairment of obligations of contract
is limited by the exercise of the police power of the Petition is hereby GRANTED, and the challenged Or-
State, in the interest of public health, safety, moral and der of respondent Judge of 18 July 1991 dismissing Civil
general welfare.” Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defend-
The reason for this is emphatically set forth in Nebia vs. ants the holders or grantees of the questioned timber li-
New York,30 quoted in Philippine American Life insur- cense agreements.
ance Co. vs. Auditor General,31 to wit:
No pronouncement as to costs.
SO ORDERED.
HILARIO G. DAVIDE, JR.
Associate Justice
29
110 Phil. 198, 203 [1970]: footnotes omitted.
30
291 U.S. 502, 523, 78 L. ed. 940, 947-949.
31
22 SCRA 125, 146-147 [1968].
32
Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp., supra,: Phil. American Life Insurance Co. vs. Auditor General,
supra,: Alalayan vs. NPC, 24 SCRA 172 [1968]: Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRa 54 [1974]; Kabiling vs. National
Housing Authority, 156 SCRA 623 [1987];
33
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
C O N C U R:
(No part: related to one of the parties)
ANDRES R. NARVASA
Chief Justice
(Please see seperate opinion concurring in the result)
(SAGANI A. CRUZ FLORENTINO P. FELICIANO
Associate Justice Associate Justice
TEODORO R. PADILLA ABDULWAHID A. BIDIN
Associate Justice Associate Justice
CAROLINA C. GRINO-AQUINO FLORENZ D. REGALADO
Associate Justice Associate Justice
FERIDA RUTH P. ROMERO RODOLFO A. NOCON
Associate Justice Associate Justice
JOSUE N. BELLOSILLO JOSE A.R. MELO
Associate Justice Associate Justice
CAMILO D. QUIASON DEYWATO S. PUNO(No part in the deliberations)
Associate Justice Associate Justice
No part. I was not yet with the Court when the case was deliberated upon
JOSE C. VILUG
Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Deci-
sion were reached in consultation before the case was assigned to the writer of the opinion of the Court.
ANDRES R. NARVASA
Chief Justice
CLERK OF COURT
34
OPOSA V FACTORAN
G.R. No. 101083 “specific,” without doing excessive violence to language.
It is in fact very difficult to fashion language more com-
(Juan Antonio, Anna Rosario and Jose Alfonso, all sur- prehensive in scope and generalized in character than a
named Oposa, minors, and represented by their parents right to “a balanced and healthful ecology.” The list of
Antonio and Rizalina Oposa, et al. v. The Honorable particular claims which can be subsumed under this ru-
Fulgencio S. Factoran, Jr. and the Honorable Eriberto U. bric appears to be entirely open-ended; prevention and
Rosario.) control of emission of toxic fumes and smoke from fac-
tories and motor vehicles; of discharge of oil, chemical
Promulgated: effluents, garbage and raw sewage into rivers, inland and
coastal waters by vessels, oil rigs, factories, mines and
Feliciano, J.: Concurring in the result whole communities; of dumping of organic and inorganic
JULY 30 1993 wastes on open land, streets and thoroughfares; failure
to rehabilitate land after strip-mining or open-pit min-
I join in the result reached by my distinguished brother ing; kaingin or slash-and-burn farming; destruction of
in the Court, Davide, Jr., J. in this case which, to my fisheries, coral reefs and other living sea resources
mind, is one of the most important cases decided by this through the use of dynamite or cyanide and other chemi-
Court in the last few years. The seminal principles laid cals; contamination of ground water resources; loss of
down in this decision are likely to influence profoundly certain species of fauna and flora; and so on. The other
the direction and course of the protection and manage- statements pointed out by the court: Section 3, Execu-
ment of the environment, which of course embraces the tive Order NO. 192 dated 10 June 1987; Section 1, Title
utilization of all the natural resources in the territorial XIV, Book IV of the 1987 Administrative Code; and P.O.
base of our polity. I have therefore sought to clarify, ba- No. 1151, dated 6 June 1977 — all appear to be formu-
sically to myself, what the Court appears to be saying. lations of policy, as general and abstract as the constitu-
tional statements of basic policy in Article II, Section 16
The Court explicitly states that petitioners have the lo- (“the right — to a balanced and healthful ecology”) and
cus standi necessary to sustain the bringing and mainte- 15 (“the right to health”).
nance of this suit (Decision, pp.11-12). Locus standi is
not a function of petitioners’ claim that their suit is prop- P.O. No. 1152, also dated 6 June 1977, entitled “The
erly regarded as a class suit. I understand locus standi to Philippine Environment Code,” is, upon the other hand,
refer to the legal interest which a plaintiff must have in a compendious collection of more “specific environment
the subject matter of the suit, because of the very broad- management policies” and “environment quality stand-
ness of the concept of “class” here involved — member- ards” (fourth “Whereas” clause, Preamble) relating to
ship in this “class” appears to embrace everyone living an extremely wide range of topics:
in the country whether now or in the future — it appears
to me that everyone who may be expected to benefit from (a) air quality management;
the course of action petitioners seek to require public
respondents to take, is vested with the necessary locus (b) water quality management;
standi. The Court may be seen therefore to be recogniz-
ing a beneficiaries’ right of action in the field of envi- (c) land use management;
ronmental protection, as against both the public admin-
istrative agency directly concerned and the private per- (d) natural resources management and conservation
sons or entities operating in the field or sector of activity embracing:
involved. Whether such a beneficiaries’ right of action
may be found under any and all circumstances, or whether (i) fisheries and aquatic resources;
some failure to act, in the first instance, on the part of
the governmental agency concerned must be shown (ii) wild life;
(“prior exhaustion of administrative remedies”), is not
discussed in the decision and presumably is left for fu- (iii)forestry and soil conservation;
ture determination in an appropriate case.
(iv) flood control and natural calamities;
The Court has also declared that the complaint has al-
leged and focussed upon “one specific fundamental le- (v) energy development;
gal right” the right to a balanced and healthful ecology”
(Decision, p.14). There is no question that “the right to a (vi) conservation and utilization of surface and ground
balanced and healthful ecology” is “fundamental” and water;
that, accordingly, it has been “constitutionalized.” But
although it is fundamental in character, I suggest, with (vii) mineral resources
every great respect, that it cannot be characterized as
35
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Two (2) points are worth making in this connection. ond paragraph of Section 1 of Article VIII of the Con-
Firstly, neither petitioners nor the Court has identified stitution which reads:
the particular provision or provisions (if any) of the Phil-
ippine Environment Code which give rise to a specific “Section 1. x x x
legal right which petitioners are seeking to enforce. Sec-
ondly, the Philippine Environment Code identifies with Judicial power includes the duty of the courts of jus-
notable care the particular government agency charged tice to settle actual controversies involving rights
with the formulation and implementation of guidelines which are legally demandable and enforceable, and
and programs dealing with each of the headings and sub- to determine whether or not there has been a grave
headings mentioned above. The Philippine Environment abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumental-
Code does not in other words, appear to contemplate
ity of the Government.” (Emphases supplied)
action on the part of private persons who are beneficiar-
ies of implementation of that Code. When substantive standards as general as “the right to a
balanced and healthy ecology” and “the right to health”
As a matter of logic, by finding petitioners’ cause of ac- are combined with remedial standards as broad ranging
tion as anchored on a legal right comprised in the consti- as “a grave abuse of discretion amounting to lack or
tutional statements above noted, the Court is in effect excess of jurisdiction,” the result will be, it is respect-
saying that Section 15 (and Section 16) of Article II of fully submitted, to propel courts into the uncharted ocean
the Constitution are self-executing and judicially enforce- of social and economic policy making. At least in re-
able even in their present form. The implications of this spect of the vast area of environmental protection and
doctrine will have to be explored in future cases; those management, our courts have no claim to special tech-
implications are too large and far-reaching in nature even nical competence and experience and professional quali-
to be hinted at here. fication. Where no specific, operable norms and stand-
ards are shown to exist, then the policy making depart-
My suggestion is simply that petitioners must, before ments — the legislative and executive departments —
the trial court, show a more specific legal right — a right must be given a real and effective opportunity to fash-
cast in language of a significantly lower order of gener- ion and promulgate those norms and standards, and to
ality than Article II (15) of the Constitution — that is or implement them before the courts should intervene.
may be violated by the actions, or failures to act, im-
puted to the public respondent by petitioners so that the My learned brother Davide, Jr., J. rightly insists that the
trial court can validly render judgement granting all or timber companies, whose concession agreements or
part of the relief prayed for. To my mind, the Court should TLA’s petitioners demand public respondents should
be understood as simply saying that such a more spe- cancel, must be impleaded in the proceedings below. It
cific legal right or rights may well exist in our corpus of might be asked that, if petitioners’ entitlement to the
law, considering the general policy principles found in relief demanded is not dependent upon proof of breach
the Constitution and the existence of the Philippine En- by the timber companies of one or more of the specific
vironment Code, and that the trial court should have given terms and conditions of their concession agreements (and
petitioners an effective opportunity so to demonstrate, this, petitioners implicitly assume), what will those com-
instead of aborting the proceedings on a motion to dis- panies litigate about? The answer I suggest is that they
miss. may seek to dispute the existence of the specific legal
right petitioners should allege, as well as the reality of
It seems to me important that the legal right which is an the claimed factual nexus between petitioners’ specific
essential component of a cause of action be a specific, legal right and the claimed wrongful acts or failures to
operable legal right, rather than a constitutional or statu- act of public respondent administrative agency. They
tory policy, for at least two (2) reasons. One is that un- may also controvert the appropriateness of the remedy
less the legal right claimed to have been violated or dis- or remedies demanded by petitioners, under all the cir-
regarded is given specification in operational terms, de- cumstances which exist.
fendants may well be unable to defend themselves intel-
ligently and effectively; in other words, there are due I vote to grant the Petition for Certiorari because the
process dimensions to this matter. protection of the environment, including the forest cover
of our territory, is of extreme importance for the coun-
The second is a broader-gauge consideration — where a try. The doctrines set out in the Court’s decision issued
specific violation of law or applicable regulation is not today should, however, be subjected to closer examina-
alleged or proved, petitioners can be expected to fall back tion.
on the expanded conception of judicial power in the sec-
Florentino P. Feliciano
36
M. FAROOQUE V BANGLADESH
DR. MOHIUDDIN FAROOQUE
V.
BANGLADESH AND OTHERS
Number: Civil Appeal No.24 of 1995
Official Citation: 17 BLD (AD) 1997, Vol. XVII, Page - was an international treaty affecting territory of Bangla-
1 to 33, 1 BLC (AD) (1996) Page - 189 to 219 desh) a petitioner qualifies himself to be a person aggrieved.
Year: 1996 The liberal interpretation given to the expression “any
person aggrieved” in the judgements of my learned broth-
02. Brief Description of the holding or analysis by the ers, in my opinion, approximates the test of or if the same
Court: is capsulized [sic], amounts to, what is broadly called,
“sufficient interest”. Any person other than an officious
A.T.M. AFZAL, C.J., intervenor or a wayfarer without any interest or concern
beyond what belongs to any of the 120 million people of
The liberalized view as expounded by my brother is an the country or a person with an oblique motive, having
update, if I may say so, of the liberalization agenda which sufficient interest in the matter in dispute is qualified to
was undertaken in the case of Kazi Mukhlesur Rahman, be a person aggrieved and can maintain an action for
26 DLR (SC) 44. It is a matter of some pride that quite judicial redress of public injury arising from breach of
early in our Constitutional Journey the question of locus public duty or for violation of some provision of the
standi was given a liberal contour in that decision by Constitution or the law and seek enforcement of such
this Court at a time when the Blackburn cases were just public duty and observance of such constitutional or le-
being decided in England which established the princi- gal provision. Now what is ‘sufficient interest’ will es-
ple of “sufficient interest” for a standing and the doc- sentially depend on the co-relation between the matter
trine of public interest litigation or class action was yet brought before the Court and the person who is bringing
to take roots in the Indian Jurisdiction. The springboard it. It is not possible to lay down any strait-jacket formula
for the liberalization move was the momentous statement for determining sufficient interest, which may be appli-
made in that case: cable in all cases. Of necessity the question has to be
decided in the facts of each case as already pointed out
“It appears to us that case was found to be a person ag- in the case of Kazi Mukhlesur Rahman. This topic has
grieved not because he brought any personal grievance been eloquently summed up by the Indian Supreme Court
before the Court but because, to quote from the Judge- in the case of S.P. Gupta and others, AIR 1982 SC 149
ment itself, “we heard him in view of the constitutional and I fully subscribe to that statement. It reads:
issue of grave importance raised in the instant case in-
volving an international treaty affecting the territory of “What is sufficient interest to give standing to a mem-
Bangladesh and his complaint as to an impending threat ber of the public would have to be determined by the
to his certain fundamental rights guaranteed by the con- Court in each individual case. It is not possible for the
stitution, namely, to move freely throughout the terri- court to lay down any hard and fast rule or any strait-
jacket formula for the purpose of defining or delimit-
tory of Bangladesh, to reside and settle in any place
ing ‘sufficient interest’. It has necessarily to be left to
therein as well as his right of franchise. Evidently, these the discretion of the Court. The reason is that in a mod-
rights attached to a citizen are not local. They pervade ern complex society which is seeking to bring about
and extend to every inch of the territory of Bangladesh transformation of its social and economic structure and
stretching upto the continental shelf.” trying to reach social justice to the vulnerable section
of the people by creating new social, collective ‘dif-
Two principles were established in that case, (1) that when fuse’ rights and interests imposing new public duties
there is a threat to a fundamental right of the citizens any on the State and other public authorities infinite number
one of them can invoke the jurisdiction under article 102 of situations are bound to arise which cannot be im-
prisoned in a rigid mould or a procrustean formula.
of the Constitution, that any citizen from any part of the
The Judge who has the correct social perspective and
country can become a petitioner and (2) that if a constitu- who is on the same wavelength as the Constitution will
tional issue of grave importance is raised (in that case it be able to decide, without any difficulty and in conso-
37
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
nance with the constitutional objectives, whether a A group of environmental lawyers possessed of perti-
member of the public moving the Court in a particular nent, bonafide and well-recognized attributes and pur-
case has sufficient interest to initiate the action.” poses in the area of environment and having a provable,
A person pleading sufficient interest may be able to cross, sincere, dedicated and established status is asking for a
what is called, the threshold stage on the averments made judicial review of certain activities under a flood action
in the writ petition but it will always remain open for pro- plan undertaken with foreign assistance on the ground,
spective respondent to contest the said claim on facts and inter alia, of alleged environmental degradation and eco-
also to assail the bonafides or even the appropriateness in logical imbalance and violation of several laws in cer-
a particular case of the petitioner for seeking a relief in- tain areas of the district of Tangail. The question is: does
voking the constitutional jurisdiction of the High Court it have sufficient interest in the matter for a standing under
Division under article 102 of the Constitution ... but the article 102?
consideration would have been different if any organiza-
tion representing a weaker section of the society has come It is very interesting that Justice Douglas of the U.S.
to complain about a breach of any fundamental right of Supreme Court in his minority opinion went so far as to
its members or any public wrong done to the members say in Sierra Club Vs. Morton, 401 U.S. 907 (1971)
generally in breach of any provision of the constitution or (No.70-34) that contemporary public concern for pro-
law. The Court will have to decide in each case, particu- tecting nature’s ecological equilibrium should lead to the
larly when objection is taken, not only the extent of suffi- conferral of standing upon environmental objects to sue
ciency of interest but also the fitness of the person for for their own preservation. The learned Judge further said:
invoking the discretionary jurisdiction under article 102 Ecology reflects the land ethic; and Aldo Leopold wrote
of the Constitution. Ordinarily, it is the affected party in A Sand County Almanac 204 (1949), ‘The land ethic
which is to come to the Court for remedy. The Court in simply enlarges the boundaries of the community to in-
considering the question of standing in a particular case, clude soils, waters, plants, and animals, or collectively,
if the affected party is not before it, will enquire as to the land.” That as I see it, is the issue of “standing” in the
why the affected party is not coming before it and if it present case and controversy.
finds no satisfactory reason for non-appearance of the af-
fected party, it may refuse to entertain the application. The Rio Declaration on Environment and Development
containing 27 principles include, among other, it may be
As regards the locus standi of the appellant in the present noted for the present purpose:
case, I agree with my learned brothers that the High Court
Division wrongly decided the issue upon wrongly rely- Principle 3: The right to development must be fulfilled
ing on the Sangbad Patra Parishad case which has got no so as to equitably meet developmental and environ-
application to the facts of the present case. Facts of the mental needs of present and future generations.
appellant’s case have been elaborately noticed in the Principle 10: Environmental issues are best handled
judgement of Mustafa Kamal, J. and I may state briefly with the participation of all concerned citizens, at the
that the appellant is the Secretary General of the Bang- relevant level. At the national level, each individual
ladesh Environmental Lawyers Association (BELA) and shall have appropriate access to information concern-
ing the environment that is held by public authorities,
the said organization is working in the field of environ-
including information on hazardous materials and ac-
ment and ecology. In the writ petition the activities of tivities in their communities, and the opportunity to
FAP, FAP-20 and the FPCO have been impugned on the participate in decision-making processes. States shall
ground, inter alia, that the said activities would adversely facilitate and encourage public awareness and partici-
affect more than a million human lives and natural re- pation by making information widely available. Effec-
sources and the natural habitat of man and other flora tive access to judicial and administrative proceeding,
and fauna and that they aroused wide attention for being including redress and remedy, shall be provided.
allegedly anti-environment and anti-people project. The
appellant stated in the writ petition that as an environ- Principle 10 above seems to be the theoretical founda-
mentally concerned and active organization, BELA con- tion for all that have been vindicated in the writ peti-
ducted investigations at various times in 1992-93 in the tion and also provides a ground for standing.
FAP-20 areas. The appellant alleged that no proper envi- In this context of engaging concern for the conservation
ronmental impact assessment has been undertaken in re- of environment, irrespective of the locality where it is
lation to FAP projects even though the European parlia- threatened, I am of the view that a national organization
ment declared in its resolution of 24 June 1993 that there like the appellant, which claims to have studied and made
was urgent need of changing the FAP’s classification research on the disputed project, can and should be at-
within the World Bank project scheme from category ‘B’ tributed a threshold standing as having sufficient inter-
to category ‘A’ requiring full environmental assessment est in the matter, and thereby regarded as a person ag-
for projects which appear to have significant adverse ef- grieved to maintain the writ petition subject to the ob-
fect on the environment. jection or objections as may be raised by the respond-
ents if a Rule is issued ultimately.
38
M. FAROOQUE V BANGLADESH
MUSTAFA KAMAL, J. This Court, therefore, settled seven general principles in
Kazi Mukhlesur Rahman’s case, viz.-(1) the High Court
In Bangladesh an unnoticed but quiet revolution took Division does not suffer from any lack of jurisdiction
place on the question of locus standi after the introduc- under Article 102 to hear a person. (2) The High Court
tion of the Constitution of the People’s Republic of Bang- Division will grant locus standi to a person who agitates
ladesh in 1972 in the case of Kazi Mukhlesur Rahman a question affecting a constitutional issue of grave im-
vs. Bangladesh, 26DLR(SC)44, decided on September portance, posing a threat to his fundamental rights which
3, 1974 and hereinafter referred to as Kazi Mukhlesur pervade and extend to the entire territory of Bangladesh.
Rehman’s Case. The appellant challenged the Delhi (3) If a fundamental right is involved, the impugned
Treaty signed on the 16th May, 1974 by the Prime Min- matter need not affect a purely personal right of the ap-
isters of the Government of Bangladesh and the Repub- plicant touching him alone. It is enough if he shares that
lic of India providing therein inter alia that India will right in common with others. (4) In interpreting the words
retain the southern half of South Berubari Union No.12 “any person aggrieved”, consideration of “Fundamental
and the adjacent enclaves and in exchange Bangladesh Rights” in Part III of the Constitution is a relevant one.
will retain the Dahagram and Angarpota enclaves. The (5) It is the competency of the person to claim a hearing
ground of challenge was that the agreement involved ces- which is at the heart of the interpretation of the words
sion of Bangladesh territory and was entered into with- “any person aggrieved”. (6) It is a question of exercise
out lawful authority by the executive head of govern- of discretion by the High Court Division as to whether it
ment. The High Court Division summarily dismissed the will treat that person as a person aggrieved or not. (7)
writ petition holding that the appellant had no locus The High Court Division will exercise that jurisdiction
standi. At the hearing of the certificated appeal before upon due consideration of the facts and circumstances
the Appellate Division it was urged by the appellant that of each case.
since the remedies available under Article 102(2) of our
Constitution are discretionary, the words “any person 8 years thereafter we find an echo of some of the above
aggrieved” should be construed liberally and given a wide principles in the Indian Supreme Court case of S.P. Gupta
meaning, although in the facts and circumstances of a and others vs. President of India, AIR1982(SC)149, at
particular case the Court may regard the personal inter- paragraph 19A:
est pleaded by a petitioner as being slight or too remote.
Reliance was placed by the appellant upon the case of “What is sufficient interest to give standing to a mem-
Main Fazal Din vs. The Lahore Improvement Trust, ber of the public would have to be determined by the
21DLR(SC)225 in which Hamoudur Rahman, C.J. had Court in each individual case. It is not possimined [sic]
occasion to say that the right considered sufficient for by the Court to lay down any hard fast rule or any strait-
jacket formula for the purpose of defining or delimit-
maintaining a proceeding of this nature is not necessar-
ing ‘sufficient interest’. It has necessarily to be left to
ily a right in the strict juristic sense but it is enough if the the discretion of the Court. The reason is that in a
applicant discloses that he has a personal interest in the modern complex society which is seeking to bring
matter which involves loss of some personal benefit or about transformation of its social and economic struc-
advantage or the curtailment of a privilege or liberty or ture and trying to reach social justice to the vulnerable
franchise. Upon considering several American and In- section of the people by creating new social, collec-
dian decisions of the time and a lone Australian deci- tive ‘diffuse’ rights and interests imposing new public
sion, the Appellate Division held as follows: duties on the State and other public authorities infinite
number of situations are bound to arise which cannot
be imprisoned in a rigid mould or a procrustean for-
“It appears to us that the question of locus standi does
mula. The Judge who has the correct social perspec-
not involve the Court’s jurisdiction to hear a person
tive and who is on the same wave-length as the Con-
but of the competency of the person to claim a hear-
stitution will be able to decide, without any difficulty
ing, so that the question is one of discretion which the
and inconsonance with the constitutional objectives,
Court exercises upon due consideration of the facts and
whether a member of the public moving the Court in a
circumstances of each case.
particular case has sufficient interest to initiate the ac-
Locus standi was granted to the appellant even though tion”.
he was not a resident of the southern half of South Ber-
iberi Union No.12 or adjacent enclaves involved in the Coming now to our situation, the Sangbadpatra Parishad
Delhi Treaty because he had raised a constitutional issue Case was no authority for the proposition that an envi-
of grave importance involving an international treaty af- ronmental lawyers’ association is not a person aggrieved
fecting the territory of Bangladesh and posing an im- when it espouses the causes of a large number of people
pending threat to his fundamental rights under Article on an environmental issue. The High Court division’s
36 of the Constitution and his right of franchise. These reliance on this decision was misplaced, to say the least,
rights, attached to a citizen, are not local. They pervade because the ratio decidendi of the said case was that an
and extend to every inch of the territory of Bangladesh association of newspaper owners and news organizations,
stretching upto the continental shelf. espousing not the causes of the downtrodden and the poor
39
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
who have no access to justice, but the cause of its mem- trust and in Faith in the Almighty Allah, a pledge to se-
bers who are opulent enough to seek redress on their cure for all citizens a society in which the rule of law,
own, cannot in a representative capacity be a person ag- fundamental human rights and freedom, equality and
grieved, when the association’s own interest are not in justice, political, economic and social and the affirma-
issue. That case was not an authority even for the propo- tion of the sacred duty to safeguard, protect and defend
sition that an association can never be a person aggrieved the Constitution and to maintain its supremacy as the
if it espouses the causes of its members in a representa- embodiment of the will of the people of Bangladesh are
tive capacity. The Sangbadpatra Parishad case was de- salutary in indicating the course or path that the people
cided on the facts of that case and that is how it should wish to tread in the days to come. Article 7 of the Con-
be read. stitution bestows the powers of the Republic with the
people and the exercise of the people’s power on behalf
We now proceed to say how we interpret Article 102 as a of the people shall be effected only under and by the
whole. We do not give much importance to the diction- authority of, the Constitution. Article 7 does not contain
ary meaning on punctuation of the words “any person empty phrases. It means that all the legislative, execu-
aggrieved”. Article 102 of our Constitution is not an iso- tive and judicial powers conferred on the Parliament, the
lated island standing above or beyond the sea-level of Executive and the Judiciary respectively are constitution-
the other provisions of the Constitution. It is a part of the ally the powers of the people themselves and the various
over-all scheme. Objectives and purposes of the Consti- functionaries and institutions created by the Constitu-
tution. And its interpretation in inextricably linked with tion exercise not their own indigenous and native pow-
the (i) emergency of Bangladesh and framing of its Con- ers but the powers of the people on terms expressed by
stitution, (ii) the Preamble and Article 7, (iii) Fundamen- the Constitution. The people, again, is the repository of
tal Principles of State Policy, (iv) Fundamental Rights all power under Article 7.
and (v) the other provisions of the Constitution.
As for (iii), Part II of the Constitution, containing Fun-
As to (i) above, it is wrong to view our Constitution as damental Principles of State Policy, Article 8(2) provides
just a replica with local adaptations of a Constitution of that the principles set out in this Part “shall be a guide to
the Westminster model among the Commonwealth coun- the interpretation of the Constitution and of the other
tries of Anglo-saxon legal tradition. This Constitution of laws of Bangladesh.” It is constitutionally impermissi-
ours is not the outcome of a negotiated settlement with a ble to leave out of consideration Part II of our Constitu-
former colonial power. It was not drawn upon the con- tion when an interpretation of Article 102 needs a guid-
sent, concurrence or approval of any external sovereign ance.
power. Nor is it the last of an off-replaced and off substi-
tuted Constitution after several Constitutions were tried As for (iv), Part III of the Constitution bestows Funda-
and failed, although as many as 13 amendments have so mental Rights on the citizens and other residents of Bang-
far been made to it. It is the fruit of a historic war of ladesh. Article 44 (1) guarantees the right to move the
independence, achieved with the lives and sacrifice of a High Court Division in accordance with Article 102 (1)
telling number of people for a common cause making it for the enforcement of these rights. Article 102 (1) is
a class apart from other Constitutions of comparable therefore a mechanism for the enforcement of Funda-
description. It is a Constitution in which the people fea- mental Rights which can be enjoyed by an individual
tures as the dominant actor. It was the people of Bangla- alone in so far as his individual rights are concerned, but
desh who in exercise of their own self-proclaimed native which can also be shared by an individual in common
power made a clean break from the past unshackling the with others when the rights pervade and extend to the
bondage of a past statehood and adopted a Constitution entire population and territory. Article 102 (1) especially
of its own choosing. The Constitution, historically and cannot be divorced from Part III of the Constitution.
in real terms, is a manifestation of what is called “the
People’s Power”. The people of Bangladesh, therefore, As for (v), the other provisions of the Constitution which
are central, as opposed to ornamental, to the framing of will vary from case to case may also come to play a role
the Constitution. in interpreting Article 102 of the Constitution.
As for (ii), the Preamble and Article 7, the Preamble of Article 102 therefore is an instrumentality and a mecha-
our Constitution stands on a different footing from that nism, containing both substantive and procedural provi-
of other Constitutions by the very fact of the essence of sions, by means of which the people as a collective per-
its birth which is different from others. It is in our Con- sonality, and not merely as a conglomerate of individu-
stitution a real and positive declaration of pledges, als, have devised for themselves a method and manner
adopted, enacted and given to themselves by the people to realize the objectives, purposes, policies, rights and
not by way of a presentation from skilful draftsmen, but duties which they have set out for themselves and which
as reflecting the ethos of their historic war of independ- they have strewn over the fabric of the Constitution.
ence. Among other pledges the high ideals of absolute
40
M. FAROOQUE V BANGLADESH
With the power of the people looming large behind the tinguished from a local component of a foreign organi-
constitution horizon it is difficult to conceive of Article zation, espousing that particular cause is a person ag-
102 as a vehicle or mechanism for realizing exclusively grieved and has the right to invoke the jurisdiction under
individual rights upon individual complaints. The Su- Article 102.
preme Court being a vehicle, a medium or mechanism
devised by the Constitution for the exercise of judicial It is, therefore, the cause that the citizen-applicant or the
power of the people on behalf of the people, the people indigenous and native association espouses which will
will always remain the focal point of concern of the Su- determine whether the applicant has the competency to
preme Court while disposing of justice or propounding claim a hearing or not. If he espouses a purely individual
any judicial theory or interpreting any provision of the cause, he is a person aggrieved if his own interests are
Constitution. Viewed in this context interpreting the affected. If he espouses a public cause involving public
words “any person aggrieved” meaning only and exclu- wrong or public injury, he need not be personally af-
sively individuals and excluding the consideration of fected. The public wrong or injury is very much a pri-
people as a collective and consolidated personality will mary concern of the Supreme Court which in the scheme
be a stand taken against the constitution. There is no of our Constitution is a constitutional vehicle for exer-
question of enlarging locus standi or legislation by Court. cising the judicial power of the people.
The enlargement is writ large on the face of the Consti-
tution. In a capitalist laissez faire concept of private own- The High Court Division will exercise some rules of cau-
ership of the instruments and means of production and tion in each case. It will see that the applicant is in fact
distribution, individual rights carry the only weight and espousing a public cause, that his interest in the subject
the judiciary exists primarily to protect the capitalist matter is real and not in the interest of generating some
rights of the individuals, but in our Constitution Article publicity for himself or to create mere public sensation,
13, a Fundamental Principle of State Policy, provides that he is acting bona fide, that he is not a busybody or
that the people shall own and control the instruments an interloper, that it is in the public interest to grant him
and means of production and distribution under three standing and that he is not acting for a collateral purpose
forms, namely, (a) state ownership, that is, ownership, to achieve a dubious goal, including serving a foreign
by the State on behalf of the people; (b) co-operative interest.
ownership, that is, ownership by co-operatives on behalf
of the members and (c) private ownership, that is, own- This writ petition is concerned with an environmental
ership by individuals. Where there is a State ownership issue. In our Constitution there is no specific fundamen-
on behalf of the people of the instruments and means of tal right dealing with environment, nor does it find a place
production and distribution the concept of exclusive per- in the Fundamental Principles of State Policy. If we take
sonal wrong or injury is hardly appropriate. The High the averments of the appellants in the writ petition on
Court Division cannot under the circumstances adhere their face value, and do not entertain any contrary asser-
to the traditional concept that to invoke its jurisdiction tions thereto at this stage, it is obvious that the associa-
under Article 102 only a person who has suffered a legal tion-appellant as an environmental association of law-
grievance or injury or an adverse decision or a wrongful yers is a person aggrieved, because the cause it espouses,
deprivation or wrongful refusal of his title to something both in respect of fundamental rights and constitutional
is a person aggrieved. remedies, is a cause of an indeterminate number of peo-
ple in respect of a subject matter of public concern and it
This is not to say that Article 102 has nationalized each appears, on the face of the writ petition itself, that it has
person’s cause as every other person’s cause. The tradi- devoted its time, energy and resources to the alleged ill-
tional view remains true, valid and effective till today in effects of FAP-20, it is acting bona fide and that it does
so far as individual rights and individual infraction thereof not seek to serve an oblique purpose. It has taken great
are concerned. But when a public injury or public wrong pains to establish that it is not a busybody. Subject to
or infraction of a fundamental right affecting an indeter- what emerges after the respondents state their case at the
minate number of people is involved it is not necessary, hearing of the writ petition the appellant cannot be de-
in the scheme of our Constitution, that the multitude of nied entry at the threshold stage on the averments made
individuals who have been collectively wronged or in- in the writ petition.
jured or whose collective fundamental rights have been
invaded are to invoke the jurisdiction under Article 102 We have given reasons of our own why the appellant is a
in a multitude of individual writ petitions, each repre- person aggrieved, but we have to say specifically that
senting his own portion of concern. In so far as it con- we do not accept Dr. Farooque’s submission that the as-
cerns public wrong or public injury or invasion of fun- sociation represents not only the present generation but
damental rights of an indeterminate number of people, also the generation yet unborn. This claim is based on a
any member of the public, being a citizen, suffering the case of Philippines Supreme Court, Juan Antonio Oposa
common injury or common invasion in common with and others vs. Honourable Fulgencio S. Factoran and
others or any citizen or an indigenous association, as dis- another in which the twin concepts of “inter-generational
41
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
responsibility” and “inter-generational justice” were agi- has been defined. An expression appearing in the Con-
tated by the plaintiff minors represented by their respec- stitution must get its light and sustenance from the dif-
tive parents to prevent the misappropriation or impair- ferent provisions of the constitution and from the scheme
ment of Philippine rain forest. The minors asserted that and objective of the constitution itself.
they “represent their generation as well as generation yet
unborn”. The minor’s locus standi was allowed because In our Constitution, the preamble provides that the peo-
“the right to a balanced and heartful ecology” was a fun- ple of Bangladesh proclaimed Independence on the 26th
damental right and several laws declaring the policy of day of March, 1971 and through a historic war for na-
the State to conservation of the country’s forest “not only tional independence established independent, sovereign
for the present generation by for the future generation as Bangladesh. The preamble of our Constitution envisages
well” were guaranteed. (The South Asian Environmen- a socialistic society free of all kinds of exploitation. In
tal Law Reporter, Vol.13, September, 1994, Colombo, other words, the Constitution contemplates a society
Sri Lanka, pp. 113-145). Our Constitution does not con- based on securing all possible benefits to its people,
tain any analogous provision. namely, democratic, social, political and equality of jus-
tice in accordance with law. The Constitution is the su-
As to the apprehension of floodgates the people as a preme embodiment of the will of the people of Bangla-
whole is no doubt a flood and the Constitution is the desh and as such all actions must be taken for the wel-
sluice-gate through which the people controls its own fare of the people for whose benefits all powers of the
entry. Our Courts will be prudent enough to recognize Republic vest in the people and the exercise of such power
the people when the people appears through an appli- shall be effected through the supremacy of the Constitu-
cant as also those who masquerade under the name of tion. If justice is not easily and equally accessible to every
the people. Taking up the people’s causes at the expense citizen there then can hardly be a Rule of Law. If access
of his own is a rare phenomenon, not a commonplace to justice is limited to the rich, the more advantaged and
occurrence. more powerful sections of society, then the poor and the
deprived will have no stake in the Rule of Law and they
We hold therefore that the association-appellant was will be more readily available to turn against it. Ready
wrongly held by the High Court Division not to be a and equal access to justice is a sine qua non for the main-
“person aggrieved” in the facts and circumstances of the tenance of the Rule of Law. Where there is a written Con-
case and we hold further that the appellant is “any per- stitution and an independent judiciary and the wrongs
son aggrieved” within the meaning of both Article 102 suffered by any section of the people are capable of be-
(1) and Article 102 (2)(a) of the Constitution. ing raised and ventilated publicly in a court of law there
is bound to be greater respect for the Rule of Law. The
The appeal is allowed and Writ petition No.998 of 1994 preamble of our Constitution really contemplates a soci-
is remanded to the High Court Division for hearing on ety where there will be unflinching respect for the Rule
merit. There will be no order as to costs. of Law and the welfare of the citizens. Article 7(1) of
our Constitution reads as follows:-
(Signed) Mustafa Kamal J.
“7.(1) All powers in the Republic belong to the people,
LATIFUR RAHMAN, J.:- The traditional rule as to lo- and their exercise on behalf of the people shall be ef-
cus standi is that judicial remedy is available only to a fected only under, and by the authority of, this Constitu-
person who is personally aggrieved. This principle is tion.”
based on the theory that the remedies and rights are cor-
relative and therefore only a person whose own right is The supremacy of the constitution is a special and unique
violated is entitled to seek remedy. In case of private in- feature in our Constitution. Neither in the Constitution
dividual and private law this principle can be applied with of India nor in the Constitution of Pakistan is there reas-
some strictness, but in public law this doctrine cannot be sertion of the supremacy of the Constitution. This is a
applied with the same strictness as that will tantamount substantive provision which contemplates exercise of all
to ignoring the good and well being of citizens, more be powers in the Republic through the authority of the Con-
particularly from the view point of public good for whom stitution.
the state and the Constitution exist.
Part II of our Constitution relates to fundamental princi-
‘Bela’ is actively working in the field of environmental ples of State Policy. Article 8(2) provides that these prin-
problems of the Bangladesh. It is to be kept in mind that ciples are not enforceable in any court but nevertheless
‘Bela’ has got no direct personal interest in the matter, are fundamental to the governess of the country and it
strictly speaking it is not an aggrieved person if we just shall be the duty of the State to apply the principle in
give a grammatical construction to the phrase ‘aggrieved making the laws. The principles, primarily being social
person’ which means person personally aggrieved. In our and economic rights, oblige the state, amongst other [sic]
Constitution nowhere the expression aggrieved person themselves, to secure a social order for the promotion of
42
M. FAROOQUE V BANGLADESH
welfare of the people, to secure a right to work, to edu- sociated. Thus, I find that this organization has got suffi-
cate, to ensure equitable distribution of resources and to cient interest in the matter and the question of standing
decentralize power to set up legal Government institu- must be liberally construed in the context of our Consti-
tions composed of people from different categories of tutional scheme and objectives as indicated above.
people as unit of self governance. A Constitution of a
country is a document of social evolution and it is dy- I also honestly feel that there is a positive duty on the
namic in nature. It should encompass in itself the grow- judiciary to advance and secure the protection of the
ing demands, needs of people and change of time. A Fundamental rights of its people as found in our Consti-
Constitution cannot be morbid at all. The language used tution. Strictly it may be correct to say that only a person
by the framers of the Constitution must be given a mean- whose rights are infringed has a right to make an appli-
ingful interpretation with the evolution and growth of cation to assert his right, be it fundamental or otherwise.
our society. An obligation is cast on the Constitutional But it is important to note that there is a constitutional
Court which is the apex court of the country to interpret duty on the judiciary to secure and advance the funda-
the Constitution in a manner in which social, economic mental rights of its people in view of our Constitutional
and political justice can be advanced for the welfare of mandate. In such an event this court is under a duty to
the state and its citizens. Mr. Mahmudul Islam, author of act and inquire into allegations of infringement of rights
“Constitution law of Bangladesh” opined in his book as even though technically a perfect application in terms of
follows:- Article 102 of the Constitution is not before the court.
Independence of judiciary and its separation from the
“An expression occurring in the Constitution cannot executive ensures proper functioning of the courts. The
be interpreted out of context or only by reference to Court is required to protect and enforce fundamental
the decisions of foreign jurisdictions where the con- rights guaranteed to the people, it interprets and protects
stitutional dispensation is different from ours.” the Constitution, enforces the constitutional limitations
The author dealing with the Constitution of Bangladesh on the power of the government, decides disputes be-
has very aptly said that the meaning of the expression tween the State and its citizens and between citizens.
‘aggrieved person’ must be understood keeping in view Presently, I am concerned with the protection of the rights
of the pronounced scheme and objectives of the Consti- of the people and will restrict to the same. The people
tution. The Constitution is a living document and there- have been guaranteed life, liberty, equality, security, free-
fore its interpretation should be liberal to meet the needs dom from needs, wants, illiteracy and ignorance, dig-
of the time and demands of the people. By referring to nity of man and socio-economic and political justice. Any
the various provisions of the Constitution of Bangladesh, law, action and order made and passed in violation of
I find that it ensures liberties and socio-economic justice fundamental rights guaranteed to the People [sic]. We
exhorted for a purposeful application to all categories of can thus see how judiciary upholds, protects, and de-
the population. fends the Constitution and effectively enforces the fun-
damental rights guaranteed by the constitution itself. The
The Constitution of Bangladesh recognizes the welfare judiciary defends the constitution and attains the pivotal
of the people in unambiguous terms. If we take a tradi- enviable position as the guardian of the people and also
tional restive rule and remain contented with it then the the conscience of the people. In the area of economic
same will be disastrous for the welfare of a poor, unedu- regulation, control and planning the judiciary has used
cated society like ours in the contest of social and eco- law as an instrument for the eradication of poverty, in-
nomic unequals. Time has come when this court must equality and exploitation and strengthened the hands of
act according to the needs of doing social justice to the the State in widening the gamut of its welfare activities.
large segment of population. This relaxation of the strict The terms ‘welfare State’, ‘mixed economy’, ‘socialist
rules of locus standi can be expanded in two ways. First, republic’ etc. have been the judiciary vast scope for so-
representative standing and citizen standing. The former cial engineering. Effective access to justice can thus be
relates to the standing in a matter pertaining to a legal seen as the most basic requirement, the most basic “hu-
wrong or injury being caused or threatened to be caused man rights” of a system which purports to guarantee le-
to a person or class of person who, by reason of property gal rights. The types of cases which were considered at
helplessness or disability or economic inability cannot the early stages of development of the rule of locus standi
move the court for relief. The later relates to standing in are those where there is a specific legal injury either to
a matter in which breach of public duty results in viola- the applicant or to some other person or persons for whose
tion of collective right of the public at large. In this case, benefit the action is brought arising from violation of
the appellant is not moving this application as peoples some constitutional or legal right or legally protected
of the locality being poor and economically crippled can- interest. Apart from such cases, there is a category of
not field the application before the court, but by this ac- cases where the State of a public authority may act in
tion of the respondents a public wrong or public injury violation of a constitutional or statutory obligation, or
is causing damage to environment and human health in fail to carry out such obligation resulting in injury to
Bangladesh in which specific filed ‘Bela’ is actively as- public interest or public injury as distinguished from pri-
43
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
vate injury. Who then in such cases can complain against In conclusion, I hold that the appellant may not have any
such act or omission of the State or public authority? direct personal interest but it has sufficient and genuine
Can any member of the public sue for legal redress? Or interest in the matter complained of and it has come be-
is such right or standing limited only to a certain class of fore the court as a group of public spirited young law-
persons? Or is there no one who can complain? Must the yers to see that the public wrong or public injury is rem-
public injury go unredressed? edied and not merely as a busy body perhaps with a view
to gain cheap popularity and publicity.
Thus I hold that a person approaching the court for re-
dress of a public wrong or public injury has sufficient Before parting with the case, I want to mention specifi-
interest (not a personal interest) in the proceedings and cally that any application filed by an individual, group
is acting for the public benefit and not for his personal of individuals, associations and social activists must be
gain or private profits, without any political motivation carefully scrutinized by the court itself to see as to
or other oblique consideration has locus standi to move whether the petitioner has got sufficient and genuine in-
the High Court under Article 102 of the Constitution of terest in the proceeding to focus a public wrong or pub-
Bangladesh. lic injury.
Dr. Mohiuddin Farooque has cited a large number of BIMALENDU BIKASH ROY CHOUDHURY, J. A re-
decisions from Indian jurisdiction to show how the ques- view of the authorities of this court, however, indicates
tion of locus standi has been considered in the High that no exhaustive or definitive meaning could have yet
Courts of India including the Supreme Court for evolu- been given to the said expression and the courts some-
tion and development of public interest limitation in In- times lapsed into the traditional view which originated
dia. He has cited various decisions from other countries from the old English decisions. But law does not remain
as well in his written argument to show that public inter- static. It loses its rigidity with the gradual change of the
est litigation is a new jurisprudence which the courts in social order to meet the demands of the change.
other jurisdictions are evolving. I will not refer to all
those cases as the language of article 102 of our Consti- In order to ensure that the mandates of the Constitution
tution is not in perimetria with the language of those Con- are observed the High Court Division of the Supreme
stitutions. Court is vested with the power of judicial review under
article 102 which is contained in Part VI of the Constitu-
If we look to the cases recently disposed of by the su- tion. The power is wide enough to reach any person or
preme Court of India then we find that there is a trend of place where there is injustice.
judicial activitism to protect environment through pub-
lic litigation in environmental cases. In Bangladesh such In this backdrop the meaning of the expression “person
cases are just knocking at the door of the court for envi- aggrieved” occurring in the aforesaid clauses (1) and (2)
ronmental policy making and the court is being involved (a) of article 102 is to be understood and not in an iso-
in this case. There is a trend to liberalize the rules of lated manner. It cannot be conceived that its interpreta-
standing throughout the world inspite of the traditional tion should be purged of the spirit of the constitution as
view of the locus standi. The Supreme Court of India clearly indicated in the Preamble and other provisions of
initially took the view that when any member of a public our Constitution, as discussed above. It is unthinkable that
or social organization so espouse the cause of the poor the framers of the Constitution had in their mind that the
and the down-trodden, such member should be permit- grievances of millions of our people should go unre-
ted to move the Court even by merely writing a letter dressed, merely because they are unable to reach the doors
without incurring expenditure of his own. In such a case, of the court owing to abject poverty, illiteracy, ignorance
the letter was regarded as an appropriate proceeding fall- and disadvantaged condition. It could never have been
ing within the purview of Article 32 of the Constitution. the intention of the framers of the constitution to outclass
This was thus the beginning of the exercise of a new them. In such harrowing conditions of our people in gen-
jurisdiction in India, known as epistolary jurisdiction. eral if socially conscious and public-spirited persons are
not allowed to approach the court on behalf of the public
The operation of Public interest Litigation should not be or a section thereof for enforcement of their rights the
restricted to the violation of the defined fundamental very scheme of the Constitution will be frustrated. The
rights alone. In this modern age of technology, scientific inescapable conclusion, therefore, is that the expression
advancement, economic progress and industrial growth “person aggrieved” means not only any person who is
the socio-economic rights are under phenomenal change. personally aggrieved but also one whose heart bleeds for
New rights are emerging which call for collective pro- his less fortunate fellowbeings for a wrong done by the
tection and therefore we must act to protect all the con- Government or a local authority in not fulfilling its con-
stitutional, fundamental and statutory rights as contem- stitutional or statutory obligations. It does not, however,
plated within the four corners of our Constitution. extend to a person who is an interloper and interferes with
things which do not concern him. This approach is in keep-
44
M. FAROOQUE V BANGLADESH
ing with the constitutional principles that are being evolved In the face of the statements in the writ petition BELA is
in the recent times in different countries. concerned with the protection of the people of this coun-
try from the ill-effects of environmental hazard and eco-
Although we do not have any provision like article 48-A logical imbalance. It has genuine interest in seeing that
of the Indian Constitution for protection and improve- the law is enforced and the people likely to be affected
ment of environment, articles 31 and 32 of our Constitu- by the proposed project are saved. This interest is suffi-
tion protect right to life as a fundamental right. It en- cient enough to bring the appellant within the meaning
compasses within its ambit, the protection and preserva- of the expression “person aggrieved”. The appellant
tion of environment, ecological balance free from pollu- should be given locus standi to maintain the writ peti-
tion of air and water, sanitation without which life can tion on their behalf.
hardly be enjoyed. Any act or omission contrary thereto
will be violative of the said right to life.
45
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
KAJING TUBEK & ORS
v.
EKRAN BHD & ORS
HIGH COURT (KUALA LUMPUR)
ORIGINATING SUMMONS No. S5-21-60-1995
JAMES FOONG J 19 June 1996
Environmental Law - Environmental Quality Act 1974 - Specifically, s 34A of the EQA imposed a duty upon any
Whether Minister permitted to make amendments retro- person who carries out any of the prescribed activities to
spectively - Environmental Quality Act 1974 - Interpre- submit a report to the Director General, containing an
tation Act 1948, 1967 s 20 assessment of the environmental impact of the proposed
activity and a proposal of measures that shall be under-
Civil Procedure - Declaration - Application for - hydro- taken to control any adverse environmental impact (the
electric project in Sarawak approved without adherence ‘EIA’). According to guidelines issued by the Director
to procedures set down in environmental legislation and General, such EIA must be made available to the public
guidelines - Plaintiffs deprived of vested rights to obtain and the public are invited to comment on the proposed
copy of environmental assessment report and to make project to a review panel, which is an independent body.
representations to review panel on project - Legislation This review panel would then make recommendations
provided for penal offences in the event of breach - to the Director General for his consideration and ap-
Whether plaintiff entitled to declaration as private indi- proval. However, by an order made by the Minister
vidual - Environmental Quality Act 1974 s 34A known as the Environmental Quality (Prescribed Activi-
ties) (Environmental Impact Assessment) (Amendment)
Civil Procedure - Locus standi - Allegation of plaintiffs Order 1995 (the ‘Minister’s Order’ it was provided that
that hydroelectric project would destroy their houses and the prescribed activities shall not apply to Sarawak. Sub-
lives - Plaintiffs sought declaration that project approved sequently, the Director General issued a press release
without adherence to procedures set down in environ- stating that the EIA prepared by the first defendant was
mental legislation and guidelines - Whether plaintiffs had subject to the Sarawak Natural Resources and Environ-
substantial or genuine interest to have legal position ment (Prescribed Activities) Order 1994 (the ‘Sarawak
declared. Order’), and not the regulations made under the EQA by
the Federal Government. As the Sarawak Order did not
The plaintiffs were residents of long houses in Belaga, have any provisions on the public’s entitlement to a copy
Sarawak who were affected by the Government’s pro- of the EIA and for subsequent public comments to be
posed development of a hydroelectric project in Bakun submitted to the review panel before an approval could
covering approximately 69,640 hectares of land (“Bakun be granted by the Director General, the State Natural
HEP”). The first defendant was the project proponent of Resource Board could review and approve the EIA. The
the Bakun HEP; the second defendant was the Director EIA submitted by the first defendant was accordingly
General of Environmental Quality; the third defendant considered and approved. By these acts of the defend-
was the Government of Malaysia; the fourth defendant ants, the plaintiffs claimed that they had been deprived
was the Natural Resources and Environment Board and of their accrued/vested rights to obtain a copy of the EIA,
the fifth defendant was the Sarawak State Government. to be heard and make representation before the EIA is
The plaintiff sought a declaration that before the first approved. The defendants contended that: (1) the plain-
defendant carried out the construction of the Bakun HEP, tiffs had no locus standi to bring the action as they had
they had to comply with the Environmental Quality Act not suffered any specific, direct or substantial damage
of 1974 (the ‘EQA’), the guidelines prescribed under s which was different from that common to the rest of the
34A of the Act, and the regulations made thereunder. public; (b) as the EQA had provided for a penal offence
Under the EQA, certain prescribed activities could only in the event of breach of s 34A, a declaration sought for
be carried out with the approval of the Director General by the plaintiffs as private individuals cannot be enter-
of Environmental Quality (‘the prescribed activities’). tained; (c) the court’s power to make declaratory judg-
46
KAJING T UBEK V E KRAN BHD & O THERS
ments was confined to matters which were justiciable in ties. When Parliament had delegated the Minister
the High Court, and to gant the plaintiffs’ declaration with power to prescribe any activity, it would be un-
would entail the court enforcing on the state of Sarawak, justifiable for him to return to the house on every
laws and regulations which Parliament did not have leg- single activity he wished to disprescribe which in
islative authority to enact; (d) the Minister’s order sus- his opinion had become unnecessary or inapplica-
pending the application of the prescribed activities to ble.
Sarawak merely amended the procedure for the approval
of the EIA from the Director General to the Sarawak (5) There was no express provision in the EQA to per-
Board and did not extinguish any vested/accrued rights mit the Minister to make any amendments retrospec-
of the plaintiffs; (e) the underlying objective of the plain- tively. If he wished to avail himself of the powers in
tiffs was to avoid losing their land, crops, houses and S 20 of the Interpretation Act to give effect to the
ancestral burial sites if the Bakun HEP was to proceed retrospectively of his order, he must say so expressly.
and these were matters which could only be resolved
under the provision of the Land Code of Sarawak; (f) (6) Under the guidelines issued by the Director Gen-
the proper relief is an order of mandamus against the eral, public participation in the form of obtaining a
second defendant to exercise its statutory duty under 0.53 copy of the EIA, commenting thereto and making
of the Rules of the High Court and not by way of decla- representation was explicitly provided. All these
ration as the substance of the plaintiffs’ grievances were were to be complied with before the review panel
actually against the second and third defendants for the made its recommendation to the Director General
purported abdication of its statutory powers. The plain- who in turn takes into consideration these recom-
tiffs’ contentions were that: (a) the Minister’s power mendations before arriving at a decision. This proc-
under s 34A of the EQA was restricted to prescribing of ess was therefore mandatory and any decision made
activities which fell under s 34A but not to suspend the by the Director General without the above proce-
application of these activities to the state of Sarawak; dure being adhered to would be against the legal pro-
(b) though the Minister’s order was made retrospectively, visions of the EQA and its subsidiary legislation.
this was done under s 34A of the EQA which did not With this, the entitlement to a copy of the EIA, com-
provide the Minister with a power to amend the law ret- menting thereon by the public became a right and
rospectively. the plaintiffs were entitled to such rights.
Held, granting the declaration sought by the plaintiffs: (7) The Minister’s order suspending the application of
the prescribed activities to Sarawak was not about a
(1) The plaintiffs’ claim that their homes and land would transfer of procedure, but the extinction of the EQA
be destroyed, their lives uprooted by the project and in its application on certain material activities in
that they would suffer far more greatly and directly Sarawak. Where a right to prosecute existed, it was
than other members of the public as their ‘land and no longer procedural but substantive.
forest are not just a source of livelihood but consti-
tute life itself, fundamental to their social cultural (8) The plaintiffs’ apprehension that their land, crops,
and spiritual survival as native peoples’, was suffi- houses and ancestral burial sites would be devastated
cient to justify the plaintiffs having a substantial or if Bakun HEP were to proceed did not extinguish
genuine interest to have a legal position declared. their vested rights to make representations and be
heard before the EIA was approved under the EQA.
(2) Even though there was provision for a criminal of- The rights of the plaintiffs under the EQA were dis-
fence which provided for a penal remedy, the plain- tinct and separate from the rights under the Land
tiffs were entitled to seek their declaration as they Code of Sarawak. But this did not mean that just
had suffered specific, direct and substantial damages. because the plaintiffs wished to enforce their rights
under the EQA they possessed a sinister motive as
(3) The issue before this court concerned the validity of claimed.
an order made by the Minister under s 34A of the
EQA in its procedural aspect of its enactment. This (9) The court would not refuse the plaintiffs’ applica-
was a real and substantial controversy which this tion solely on the ground that an alternative remedy
court had jurisdiction to determine, irrespective of was available. The court would consider the grant-
whether there existed a state law or a federal legisla- ing of the form of relief most likely to resolve the
tion governing a similar underlying subject matter. disputes between the parties.
The matter to be determined is justiciable for this
forum. Notes
(4) The Minister has corresponding power to For cases on declarations, see 2 Mallal’s Digest (4th Ed,
‘disprescribe’ or ‘unprescribe’ any prescribed activi- 1994 Reissue) paras 1104-1126.
47
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
For cases on locus standi, see 2 Mallal’s Digest (4th Ed, JC Foong (Sarawak State Attorney General) for the
1994 Reissue) paras 2272-2290. fourth and fifth defendants.
Cases referred to James Foong J: The plaintiffs in this action are resi-
dents of longhouses of Long Bulan, Uma Daro and Baku
Chief Assessor, Property Tax, Singapore v Howe Yoon Kalo in the district of Belaga, the seventh division of
Chong [1979] MLJ 207 Sarawak. Sometime in September 1993, the Federal
Cabinet of Malaysia announced its approval of the pro-
Government of Malaysia v Lim Kit Siang [1988] posed development of a hydroelectric project in the sev-
2 MLJ 12 enth division of Sarawak, an area known as Bakun cov-
Hanson v Radcliffe Urban District Council [1922] ering approximately 69,640 hectares of land to meet the
2 Ch 490 long-term power and energy requirements of the nation.
Howe Yoon Chong v Chief Assessor, Property Tax, Sin- It involves three stages; the creation of a reservoir, con-
gapore [1978] MLJ 87 struction of a dam and the transmission of the generated
Ibeneweka v Egbuna [1964] 1 WLR 219 electric power from Sarawak in East Malaysia to Penin-
Lonrho Ltd & Anor v Shell Petroleum Co Ltd & Anor sular Malaysia by transmission cables which will, for a
(No 2) [1982] AC 173 greater part, be submerged across the South China Sea.
Penang Development Corp v Teo Eng Huat & Anor This project, which is commonly termed the ‘Bakun
[1993] 2 MLJ 97 Hydroelectric Project’ (‘Bakun HEP’) will, according to
Petaling Tin Bhd v Lee Kian Chan & Ors [1994] the plaintiffs, directly and adversely involve the destruc-
1 MLJ 657 tion of their longhouses, ancestral burial sites as well as
Phillips v Eyre (1870) LR 6 QB 1 land and forests from which they seek shelter, livelihood,
R v Secretary of State for the Home Development, ex p food and medicine - all of which they claim to have a
Al-Mehdawi [1989] 1 All ER 777 strong cultural attachment.
Salijah bte Ab Lateh v Mohd Irwan Abdullah [1996] 1
SLR 63 Under the Environment Quality Act of 1974 (‘the EQA’)
Tan Sri Hj Othman Saat v Mohamed bin Ismail [1982] - which was passed by the Federal Parliament of Malay-
2 MLJ 177 sia and became law on 15 April 1975 - certain activities
Wong Pot Heng & Anor v Kerajaan Malaysia [1992] to be prescribed by the Minister charged with the respon-
2 MLJ 885 sibility for environment protection (‘the Minister’) can
Yamaha Motor Co. Ltd v Yamaha Malaysia Sdn Bhd only be carried out with the approval of the Director
& Ors [1983] 1 MLJ 213 General of Environmental Quality (‘the Director Gen-
Yew Bon Tew & Anor v Kenderaan Bas Mara[1983] eral’), who is the second defendant in this action. This,
1 MLJ 1 as the long title of the EQA specifies, is for the ‘preven-
tion, abatement, control of pollution and enhancement
Legislation referred to of the environment and the purpose connected therewith.
Section 34A of the EQA imposes a duty upon any per-
Borneo States (Legislative Powers) Order 1963 son who carries out any of the prescribed activities to
Environment Quality Act of 1974 ss 34, 34A(1), (2), submit a report to the Director General in accordance
34A(8) with the guidelines prescribed by the Director General.
Environment Quality (Prescribed Activities) (Environ- This report should contain an assessment of the impact
mental Impact Assessment) Order 1987 item 13(b) such activity which is proposed to be carried out will
Environmental Quality (Prescribed Activities) (Environ- have or is likely to have, on the environment and a pro-
mental Impact Assessment) (Amendment) Order 1995 s 2 posal of measures that shall be undertaken to prevent,
Federal Constitution arts 73, 74, 76A, 77, 95B, 95C, reduce or control any adverse impact on the environment.
128(1), (2) Ninth Schedule (This report shall be known as ‘EIA’).
Interpretation Acts 1948, 1967 ss 3, 20, 30(1)(b)
Natural Resources Ordinance (Cap 84) s 11A(1) According to para 3.4.7 of the Handbook of Environ-
Natural Resources and Environment (Prescribed Activi- mental Impact Assessment Guidelines (‘the Guidelines’)
ties) Order 1994 s 2(2), item 4(ii) passed and approved by the Director General, a detailed
Rules of the High Court 1980 O 53 EIA prepared by the proponent of the project must be
made available to the public. And under para 4.5 of the
GS Nijar (Meenakshi Raman and Thayalan with him) Guidelines, the public are invited to comment on the pro-
(Meena Thayalan & Partners) for the plaintiffs. posed project to a review panel, which is an independent
Shafee Abdullah (CG Oh with him) (Shafee & Co) for body of experts or representatives of interested organi-
the first defendant. zations appointed with the prime task of reviewing a
Stanley Isaac (Senior Federal Counsel) (Abu Bakar Fais detailed EIA and to evaluate the environmental, devel-
with him for the second and third defendants. opment costs and benefits to the community. This re-
48
KAJING T UBEK V E KRAN BHD & O THERS
view panel will formulate its recommendation to the herein are made to apply retrospectively.
Director General for his consideration and decision on
its approval. Sarawak - as early as 1949, before she jointed Malaysia
- had a legislature known as the ‘Natural Resources Or-
By an order known as the ‘Environment Quality (Pre- dinance’ (‘the Sarawak Ordinance’). Under s 11A(1) of
scribed Activities) (Environmental Impact Assessment) the Sarawak Ordinance, a State Natural Resources Board
Order 1987’ numbered as PU(A) 362/87 (‘PU(A) 362’) (‘the Sarawak Board’) created under this Ordinance could
which came into effect on 1 April 1988, the Minister prescribe certain activities, which inter alia ‘may injure,
prescribed a number of activities to be ‘prescribed ac- damage or have adverse impact on the quality of the en-
tivities’ falling within the EQA. One such activity in vironment or the natural resources of the state’, to re-
item 13(b) is: quire the approval of the Sarawak Board before they could
be implemented. On 5 July 1994, the Sarawak Board by
13 Power Generation and Transmission: an order known as the ‘Natural Resources and Environ-
ment (Prescribed Activities) Order 1994’ (‘the Sarawak
(b) Dams and hydroelectric power schemes with either Order’), besides prescribing certain activities which re-
or both of the following: quire the Sarawak Board’s approval, also lays down pro-
cedure for the application for such approvals. In respect
(i) dams over 15 meters high and ancillary struc- of procedure, it requires the project proponent to submit
tures covering a total area in excess of 40 hec- to the Sarawak Board an EIA for the Board’s considera-
tares; tion. The fundamental difference between this sarawak
Order and the Guidelines is essentially the entitlement
(ii) reservoirs with a surface area in excess of 400 to a copy of the EIA by the public and the subsequent
hectares. public comments to the review panel before an approval
can be granted by the Director General. The Sarawak
However, on 27 March 1995, the Minister, purportedly Order does not contain such provisions. This, basically,
‘in exercise of the powers conferred by s 34A of the EQA’ is the discontentment of the plaintiffs. Of course, one of
by an order known as the ‘Environmental Quality the prescribed activities in the Sarawak Order includes,
(Prescribed Activities) (Environmental Impact under item 4(ii), the ‘construction of dams, artificial lakes
Assessment) (Amendment) Order 1995’ numbered as or reservoirs with a surface area of 50 hectares for im-
PU(A)117 (‘PU(A) 117’) ‘disprescribe’ or ‘unprescribe’ pounding water’ and under s 2(2) of the same Order,
(terms used by counsel for the first defendant), inter alia, ‘measurement of area shall be construed to mean the
item 13(b) of the prescribed activity made by him in minimum area prescribed...’
PU(A) 362. This PU(A) 117 was gazetted on 20 April
1995. The mode used in s 2 of this amendment order The first defendant is the project proponent of the Bakun
reads as follows: HEP. The plaintiffs claimed that on 7 March 1994, the
EIA for the Bakun HEP was commissioned and subse-
2 The Environment Quality (Prescribed Activities) quent to this, there were various public pronouncements
(Environmental Impact Assessment) Order 1987 is by government leaders that the EIA would be made avail-
amended by inserting, after paragraph 2, the follow- able to the public for their comments and views before
ing paragraphs: approval. Through the exhibits annexed to the first plain-
tiff’s affidavit were also letters from the Minister assur-
3 In relation to the State of Sarawak, this Order shall ing certain public interest groups that all EIA procedures
not apply in respect of the prescribed activities listed under the EQA for this project have to be complied with
in the First Schedule of the national Resources and and public views will be considered. Suddenly, on 1
Environment (Prescribed Activities) Order 1994 pub- April 1995, the Press reported that the first defendant’s
lished under Part II of the Sarawak Government chairman had claimed that the first segment of the EIA
Gazette dated 11 August 1994, save that if there are submitted by his company had been approved by the
any inconsistencies between the two Orders, this Director General and with this, the first defendant would
Order shall prevail. be able to start preparatory works at the lower end of the
reservoir, which involved the clearing of 69,000 hectares
4 Notwithstanding paragraph 3, the prescribed activi- of forest. A few days later, on 7 April 1995, the Director
ties listed as Items 2, 5(a) and (b), 8, 9, 10, 12, 13(a), General in a Press release clarified that the EIA prepared
(c) and (d), 15, 16 and 18 in the Schedule shall con- by the first defendant is:
tinue to apply in respect of the State of Sarawak.
... subjected to the Sarawak Order and not the Federal
One of the most controversial provisions of this amend- Government regulations. All prescribed activities re-
ment order is that it ‘shall be deemed to have come into lated to the development of land, water, forestry, agri-
force on 1 September 1994’. In short, the provisions culture and other natural resources in Sarawak are sub-
ject to the Order (the Sarawak Order), including the
49
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
construction of hydroelectric dams -; since Ekran tensively and comprehensively detailed in the learned
Bhd’s (the first defendant) submission was made after judgments of Salleh Abas LP in Government of Malay-
the Order came into force, it is within the Board’s (the sia v Lim Kit Siang [1988] 2 MLJ 12 at p 20. There is
Sarawak Board’s) purview to review and approve it. no necessity for this court to repeat them except to pro-
The first part of the EIA submitted by Ekran Bhd two
ceed straight into the elaboration of the principles ex-
month ago was accordingly considered and approved
on 27 March - The New Straits Times Press on 7 April pounded. It was agreed by two (Salleh Abas LP and
1995 Hashim Yeop Sani SCJ) of the three majority judges in
the above mentioned case that the best approach to the
as found in exh E of the first plaintiff’s affidavit affirmed determination of locus standi is the proposition pro-
on 5 May 1995. It is pertinent at this stage to note that nounced by the (then)Supreme Court in the case of Tan
the Sarawak Order, though made on 5 July 1994, was Sri Jh Othman Saat v Mohamed bin Ismail [1982] 2 MLJ
also enacted to be effective retrospectively to 1 Septem- 177 at p 179, which is as follows:
ber 1994.
The sensible approach in the matter of locus standi in
By these acts of the defendants, the plaintiffs claim they injunctions and declarations would be that as a matter
have been deprived of their accrued/vested rights to ob- of jurisdiction, an assertion of an infringement of a
tain a copy of the EIA, to be heard and make representa- contractual or a proprietary right, the commission of a
tort, a statutory right or the breach of a statute which
tions before the EIA is approved. They are now seeking
affects the plaintiff’s interests substantially or where
‘a declaration that before the first defendant carries out the plaintiff has some genuine interest in having his
the prescribed activity, viz the construction of the Bakun legal position declared, even though he could get no
HEP, the first defendant has to comply with the EQA other relief, should suffice (Emphasis added.)
including s 34A of the said Act and/or the guidelines
prescribed by the second defendant under s 34A of the A perusal of the plaintiffs’ affidavits, without any credit-
said Act and the regulations made thereunder.’ able evidential challenge from the defendants, confirms
that the plaintiffs are natives to the area affected by the
The third defendant is the Government of Malaysia, while Bakun HEP. They have claimed that their homes and
the fourth and fifth defendants were added into these land will be destroyed, their lives uprooted by the project
proceedings upon the suggestion of this court and agreed and they will suffer far more greatly and directly than
upon by all parties then present, principally for the rea- other members of the public. To them, ‘our land and
son that the subject matter concerns and involves them. forest are not just a source of our livelihood but consti-
tute life itself, as they are fundamental to our social, cul-
As expected, the plaintiffs’ application brought a bar- tural and spiritual survival as native people.’ This itself,
rage of objections from all the defendants which raised in the opinion of this court, is sufficient to justify the
numerous legal issues. For the sake of clarity, this court plaintiffs having a substantial or genuine interest to have
shall deal with each of them under separate headings. a legal position declared.
Locus Standi The plaintiffs may be just three members of a commu-
nity of 10,000 affected by the Bakun HEP, but as Vis-
The defendants submit that the plaintiffs have no locus count Radcliffe in Ibeneweka v Egbuna [1964] 1 WLR
standi to bring this action; in short, they have suffered 219 aptly put (at p 226):
no specific, direct or substantial damage other and dif-
ferent from that which was common to all the rest of the ... there has never been any unqualified rule of prac-
public. tice that forbids the making of a declaration even when
some of the persons interested in the subject of the
The learned Attorney General of Sarawak enlightens this declaration are not before the court ... Where, as here,
defendants have decided to make themselves the cham-
court of the fact that there are over 9,000 inhabitants in
pions of the rights of those not represented and have
the area that would be flooded as a result of the creation fought the case on that basis, and where, as here, the
of the reservoir for the Bakun HEP, plus another 2,000 trial judge takes the view that the interested parties not
people residing in the proposed water catchment area. represented are in reality fighting the suit, so to say,
This totals approximately 10,000 natives affected by the from behind the hedge, there is, in their Lordships’
Bakun HEP and any damage so caused by this project is opinion, no principle in law which disentitles the same
not peculiar or special to the plaintiffs alone. In any event, judge from disposing of the case by making a declara-
any loss of their land, houses and crops will be compen- tion of title in the plaintiffs’ favour.
sated in accordance with the provisions of the Land Code
of Sarawak and not to be remedied by a declaration that Enforcement of a public duty on which a penal sanction
the first defendant must comply with the EQA. is provided
The law on locus standi in a public action has been ex- Section 34A of the EQA imposes a duty on any person
50
KAJING T UBEK V E KRAN BHD & O THERS
who carries out any of the prescribed activities to submit & Anor v Shell Petroleum Co Ltd & Anor (No 2) (1982)
an EIA to the Director General. When a project propo- AC 173 at p 185, which is consistent with Government
nent proceeds with the project without the approval from of Malaysia v Lim Kit Siang. The exceptions are:
the Director General of the EIA, he commits a breach of
s 34A of the EQA, and under s 34(A)(8) of the EQA, he: The first is where upon the true construction of the Act
it is apparent that the obligation or prohibition was im-
... shall be guilty of an offence and shall be liable to a posed for the benefit or protection of a particular class
fine not exceeding ten thousand ringgit or to impris- of individuals as in the case of the Factories Act and
onment for a period not exceeding two years or to both similar legislation ...
and to a further fine of one thousand ringgit for every The second exception is where the statute creates a
day that the offence is continued after a notice by the public right (a right to be enjoyed by all those of Her
Director General requiring him to comply with the act Majesty’s subjects who wish to avail themselves of it)
specified therein has been served upon him. and a particular member of the public suffers what Brett
J in Benjamin v Starr (1874) LR 9 CP 400 at p 407
By this decree, the defendants claim that the EQA has
described as ‘particular, direct and substantial’ dam-
provided a provision for breach of s 34A of the ECA. age ‘other and different from that which was common
When such penal remedy is created by statutory provi- to all the rest of the public.
sion, a declaration sought for by the plaintiffs as private
individuals cannot be entertained. This is supported by Even on these exceptions, the learned Attorney General
the (then) Supreme Court decision in Government of of Sarawak contends that the plaintiffs have failed to sat-
Malaysia v Lim Kit Siang [1988] 2 MLJ 12, where Abdul isfy the first. The EQA, he submits, is for inter alia ‘the
Hamid CJ (Malaya) (as he then was) held (at p 32) that: prevention, control of pollution and enhancement of the
environment and to regulate prescribed activities.’ In
With all due respect to the learned judge, my view is short, it is only a regulatory system for environmental
clear in that fundamentally where a statute creates a quality control and the enhancement, without reference
criminal offence by prescribing a penalty for the breach to any class or body of persons for whom such control or
of it but not providing a civil remedy - the general rule enhancement is to benefit; such an Act is not for the
is that no private individual can bring an action to en-
protection of any class of the public, but for the public
force the criminal law, either by way of an injunction
or by a declaration or by damages. I am inclined to generally.
the view that it should be left to the Attorney General
to bring an action, either of his own motion or at the Mr. Nijar, arguing for the plaintiffs, disagrees. He sub-
instance of a member of the public who ‘relates’ the mits that by looking at the EQA, it is apparent that the
facts to him; see Gouriet v Union of Post Office Work- obligations for public participation in an EIA before
ers & Ors [1977] 3 All ER 70. approval -as provided by paras 3.4.7 and 4.5 of the
Guidelines - are imposed for the benefit of the inter-
ested public. Though this court may agree that it may
The reason behind this is best put by Salleh Abas LP in be for the benefit of the interested public, it is without
the same case as follows (at p 26): reference to any particular class or body. It certainly
does not grant protection to any class of the public but
It is unacceptable that criminal law should be enforced only to the public at large. For this, in the opinion of
by means of civil proceedings for a declaration when this court, the plaintiffs do not fall within this particu-
the court’s power to grant that remedy is only at the lar exception.
discretion of the court. Jurisdiction of a criminal court
is fixed and certain. The standard of proof in a crimi-
On the second exception, this court finds the circum-
nal case is different from that required in a civil case
and moreover the Attorney General is the guardian of stances of this case more applicable particularly to the
public interest and as the Public Prosecutor, he, and findings of this court under the heading of ‘Locus Standi’.
not the court, is in control of all prosecutions. How The plaintiffs are natives to the location where the Bakun
can a prosecution of this nature be done behind his HEP is to be carried out. Operations of this project in-
back? These are some of the most serious objections volve cutting down trees, diverting natural water flow
to the exercise by a civil court of its discretionary power and submerging large tracts of land with water. This
relating to declaratory and injunctive remedies. Our obviously involves the destruction of the plaintiffs’ homes
system requires the public to trust the impartiality and and land and they would have to be relocated as admit-
fair-mindedness of the Attorney General. If he fails in
ted by the defendants. When the forest which is an inte-
his duty to exhibit this sense of fairness and to protect
public interest of which he is the guardian, the matter gral part of the plaintiffs’ lives is destroyed, such a dep-
can be raised in Parliament or elsewhere. rivation would certainly uproot and immensely affect
their lives. These sufferings and damages definitely are
However, there can be two exceptions to this rule as ‘particular, direct and substantial’, to the plaintiffs them-
pointed out by the learned Attorney General of Sarawak selves, which are obviously different and apart from what
acting for the fourth and fifth defendants. This is ex- other members of the public would suffer. The plaintiffs
pounded in the judgment of Lord Diplock in Lonrho Ltd may only be three of a community of 10,000 but, as ut-
51
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
tered earlier, numbers is not the criteria for the granting IIIA”) in the Ninth Schedule is deemed to form part
or refusal of declaratory relief. What is fundamental is of the Concurrent List (‘List III’) and the matters
that the plaintiffs themselves have in this case suffered enumerated in that list is deemed not to be included
specific, direct and substantial damages caused by the in the Federal List (‘List I’). In this supplement to
Bakun HEP. Within this exception, this court finds that the Concurrent List is the power of the State of
the plaintiffs are entitled to seek their declaration prayed Sarawak to make laws on ‘the production, distribu-
for in this application, even though statutory provision tion and supply of water power and of electricity
in this case subscribes a criminal offence which provides generated by water power’ (List IIIA 13).
for a penal remedy.
(5) In addition to the express powers given under the
Justiciable and the Power of the State Legislature to Make Ninth Schedule of the Federal Constitution to the
Laws State of Sarawak to make laws, the Yang Di-Pertuan
Agong acting under art 95C read together with art
In quoting the Singaporean case of Salijah bte Ab-Lateh 76A of the Federal Constitution has given powers to
v Mohd Irwan Abdullah [1996] SLR 63 at p 69, the the State of Sarawak to make laws inter alia, on ‘Elec-
learned Attorney General of Sarawak points out that the tricity and distribution of gas.’ This is under the
power to make declaratory judgment is confined to sev- Borneo States (Legislative Powers) Order 1963 LN
eral principles, one of which is that it must be restricted 17.5.
‘to matters which are justiciable in the High Court.’ With
the assistance of the learned senior federal counsel act- (6) Under the State List (List II), and supplementary list
ing for the second and third defendants, they explain that to List III (List IIIA) of the Ninth Schedule of the
environment per se is an abstract thing. It is multi-di- Federal Constitution, together with the additional
mensional so that it can be associated with anything sur- express powers made under Borneo States (Legisla-
rounding human beings. The power to legislate on envi- tive Powers) Order 1963 LN 17.5, the State of
ronmental matters, would, therefore, necessarily depend Sarawak has exclusive jurisdiction to make laws af-
on specific activity to which the environmental matter fecting land use, forestry (which includes the removal
relates. In this respect, both Parliament and the state of timber and biomass), impounding of inland wa-
legislatures of Sarawak are competent to make laws on ter, diversion of rivers, electricity and the produc-
environmental impact provided that they are confined to tion of electricity generated by water, including the
activities which are identified in the Constitution as be- removal of burial sites.
longing to their respective legislative jurisdiction the law
on the legislative jurisdiction between states and the fed- (7) In respect of environmental impact, it is neither in
eral authority need to be elaborated. the Federal List (List I),or the Concurrent List (List
III), and the defendants claim that under art 77 of
(1) Under art 73 of the Federal Constitution, while Par- the Federal Constitution, the State of Sarawak is law-
liament may make laws for the whole or any part of fully entitled to legislate over such matters, as seen
the Federation, the Legislature of the State may make to be carried through the Sarawak Ordinance and
laws for the whole or any part of the State. the Sarawak Order.
(2) Under art 74 of the Federal Constitution, Parliament’s From the above, the learned senior federal counsel points
power to make laws is in respect of matters enumer- out that in respect of the Bakun HEP, the state of Sarawak
ated in the Federal list or the Concurrent list (that is has competent and exclusive jurisdiction to govern the
to say, the list I or list III as set out in the Ninth relevant activities involved. The Minister, recognizing
Schedule of the Federal Constitution). this fact and removing any inconsistency between fed-
eral and State jurisdiction,by PU(A) 117 excluded the
(3) Under art 77 of the Federal Constitution, the legis- application of EQA on certain relevant prescribed ac-
lature of the State has power to make laws with re- tivities to the state of Sarawak. The operation of the
spect to any matters not enumerated in any of the Sarawak Order, he claims,is never dependent upon PU(A)
lists set out in the Ninth Schedule, not being a mat- 117; the Minister has prescribed the material activities,
ter in respect of which Parliament has the power to the most relevant of which is the construction of dams
make laws. This power is called the residual power and hydroelectric power schemes in PU(A) 362, at a time
of legislation and it is preserved for the State Legis- when the Sarawak Ordinance had not been amended yet
latures. to include a new s 11A for Sarawak to assume identical
powers and jurisdiction as in s 34A of the EQA. To grant
(4) Article 95B of the Federal Constitution accords spe- the declaration sought for by the plaintiffs, in the opin-
cial legislative powers to the State of Sabah and ion of the learned Attorney General of Sarawak, would
Sarawak. The supplement to List III (known as “List mean:
52
KAJING T UBEK V E KRAN BHD & O THERS
the court is seeking to enforce on the state of Sarawak, challenge, this court is not the proper forum for under
laws and regulations which Parliament did not have arts 128(1) and (2) of the Federal Constitution, only the
legislative authority to enact, or the constitutionality Federal Court to the exclusion of any other court can
of such law is questioned, and with regard to which, decide any question whether a law made by Parliament
there are already state laws and regulations for envi-
or by the legislature of the state is valid. There certainly
ronmental protection and enhancement.
is no application of such nature before this court.
These are matters not justiciable for this court to con-
sider. Irrespective of whether there is a state law existing con-
currently with a federal law, this court shall not be ham-
The response from the plaintiffs contained in Mr. Nijar’s pered in its determination to grant or refuse a declara-
reply is that the environment has increasingly become a tory relief, if found justifiable to do. If there is any in-
subject matter of international concern and the Malaysian consistency or conflict of the laws, then it is up to the
Government - since the Stockholm Conference in 1972 - respective executive authority or its relevant legislation
has participated in international conferences, entered into to resolve such matters in accordance with the correct
treaties, been signatories to international conventions and and appropriate procedure as laid down by law. One
agreed to be internationally bound by protocols relating does not expect an individual (whose right is affected
to environment. The country has carried out these ac- either by a state or federal legislation) in an attempt to
tions as part of its obligations in external affairs. To ef- enforce his right granted either by a state or federal leg-
fect these international commitments, the Federal Gov- islature to be defeated by a claim from the respective
ernment must have power at national level to pass laws executive, each claiming it has the rights and powers to
relating to matters located within the states otherwise its enact the material piece of law and doing nothing to re-
external affairs obligations will be impaired. He cites solve this. If the executive from either the state or fed-
the Convention on Biological Diversity, which Malaysia eral body has chosen to ratify and resolve such conflicts,
is signatory, that imposes binding obligations on the gov- the least he can do is to do it correctly according to the
ernment to pass laws for the preservation and sustain- law. If it is carried out incorrectly or no action ever taken
able use of all the rich flora and fauna within the coun- at all, the courts should not stand idly by to allow the
try. Matters concerning the environment is, therefore, concerned parties involved to take advantage of this situ-
an external affairs power which the federal legislature ation. In a declaratory relief, which is an all-purpose
has power under the Federal List (List I) to enact laws. remedy used in an extraordinary variety of cases, the court
will weigh the advantages of granting a declaratory re-
Before one embarks upon this issue, it is relevant to de- lief against the disadvantages, with the minimum require-
termine the definition and meaning of the word ment to achieve justice to deal with the aggrieved par-
‘justiciable’. Edgar Joseph Jr SCJ (as he then was) in ty’s claim at hand. In this case, the issue before this
Petaling Tin Bhd v Lee Kian Chan & Ors [1994] 1 MLJ court concerns the validity of PU(A) 117 in its proce-
657 at p 672 has undertaken this task and found in Black’s dural aspect of its enactment. This is a real and substan-
Law Dictionary (5th Ed, 1983) at p 1004, on the mean- tial controversy which this court has jurisdiction to de-
ing of the term ‘justiciability’: termine, irrespective of whether there exists a state law
or a federal legislature governing a similar underlying
The term refers to real and substantial controversy subject matter. For this, this court finds that the matter
which is appropriate for judicial determination, as dis- to be determined is justiciable for this forum.
tinguished from dispute or difference of contingent,
hypothetical or abstract character; ‘Gulmarin & Dean Ultra Vires
Inc v George Town Textile Mfg Co 249 SC 561, 155
SE 2d 618, 621.
(a) Power to ‘disprescribe’
To begin with, this court wishes to reiterate that the is-
sue before it is not what is the appropriate legal meas- The plaintiffs claim that under s 34A of the EQA, the
ures to safeguard the environment; which seems to be Minister’s power is restricted to prescribing of activities
the undertone of Mr. Nijar’s reply, and if allowed to pro- to fall under the EQA. He has no power to suspend the
ceed further would completely blur the relevant issues application of PU(A) 362 to the state of Sarawak for this
before this court. Basically, from the arguments and a does not fall within the terms of the enabling provision
scrutiny of the plaintiffs’ application, the nucleus of the of s 34 of the EQA.
plaintiffs’ challenge is on the validity of PU(A) 117, in
relation to the procedural aspect of its enactment. This Section 34A(1) of the EQA provides:
does not involve the determination of the jurisdictional
aspect between state legislation and the Federal Parlia- The Minister, after consultation with the Council, may
ment concerning who has the legislative power on vari- by order prescribe any activity which may have sig-
ous matters, either listed or not listed in the Ninth Sched- nificant environmental impact as prescribed activity.
ule of the Federal Constitution. This is a constitutional By implication, it is the opinion of this court that he, too,
53
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
has corresponding power to (borrowing the words of Mr. Singapore v Howe Yoon Chong [1979] 1 MLJ 207, the
Shafee, counsel for the first defendant) ‘disprescribe’ or Court of Appeal did not make any specific comments to
‘unprescribe’ any prescribed activities. This approach is the above proposition. As rationally held by the English
necessary to give full effect to the objective of the EQA, Court of Appeal in the case of R v Secretary of State for
which in the long title spells out as: the Home Department, ex p Al-Mehdawi [1989] 1 All
ER 777 at p 781, where an appellate court (the House of
An Act relating to the prevention, abatement, control Lords in this case) expressed no view on the soundness
of pollution and enhancement of the environment and or otherwise of the reasoning of the court below, the de-
for the purposes connected therewith cision of the court below has a ‘powerful persuasive in-
As society progresses, environmental characteristics and fluence on that particular issue.
values also change, caused either by human attitude,
depletion of the subject matter or the inapplicability of a This court is certainly influenced by the proposition of
prescribed activity. Environmental matters do not re- Rajah J above and to a greater extent by the decision of
main static, and the constant change in its character re- Eusoff Chin J. in Wong Pot Heng & Anor v Kerajaan
quires the Minister to prescribe as well as disprescribe Malaysia [1992] 2 MLJ 885, where the learned judge,
to move with times. When Parliament has delegated the with clarity and precision has this to say (at p 893):
Minister with power to prescribe any activity, it would
be unjustifiable for him to return to the distinguished ...s 20 of the Interpretation Acts does not apply to emer-
house on every single activity he wishes to disprescribe gency regulations made under s 2 of the 1979 Act
which, in his opinion, has become unnecessary or inap- (Emergency (Essential Powers) Act 1979). Since s 2
plicable. To interpret s 34A(I) EQA strictly is to tie the of the 1979 Act itself does not contain any provision
empowering the Yang Di-Perruan Agong to make emer-
hands of the Minister when change has come and is
gency regulations with retrospective effect, I hold that
needed. This would create an impractical approach which both the new regs 9B and 13(2) inserted into the regu-
certainly is not the intention of Parliament. lations by the amending regulations are invalid in so
far as it purports to operate retrospectively.
(b) Retrospectivity
Similarly in our case, there is no express provision in the
PU(A) 117, though in the form of an order by the Minis- EQA to permit the Honourable Minister to make any
ter, is subsidiary legislation according to s 3 of the Inter- amendments retrospectively. Section 34A(1) of the EQA
pretation Acts 1948 and 1967 (‘Interpretation Act’). empowers the Minister to prescribe any activities as pre-
Section 20 of the Interpretation Act permits this piece of scribed activities including, as this court has ruled, mak-
subsidiary legislation to be made retrospective deeming ing of amendments thereto to cater for changes, but these
it to come into force on 1 September 1994 when it was changes are in anticipation of the future and not for the
only gazetted on 20 April 1995. However, Mr. Nijar past. The Minister has explicitly stated in the operative
points out that though PU(A) 117 can be made retro- part of PU(A) 117 that he enacted this order in exercise
spective, it was not done so under s 20 of the Interpreta- of his powers conferred by s 34A of the EQA, but when
tion Act. Instead, PU(A) 117 was expressly made ‘in the purported enacting provision does not provide him
exercise of the powers conferred by s 34A of the EQA with a right to make amendments retrospectively, he in
1974.’ Again s 34A of the EQA, he claims, has never turn acquires no such right to do so under that particular
provided the Minister with a power to amend the law provision of the statute. A perusal of other sections in
retrospectively. If the Minister wishes to avail himself the EQA also reveals no provision for the Minister to
of the provision of s 20 of the Interpretation Act which amend subsidiary legislation retrospectively. If he wished
empowers him to amend retrospectively, he must cite this to avail himself of the powers in s 20 of the Interpreta-
provision explicitly but this is not apparent in PU(A) 117. tion Act to give effect to the retrospectivity of his Order,
In support of this contention, he quoted the case of Howe he must, as stated above, say so expressly. But no utter-
Yoon Chong v Chief Assessor, Property Tax, Singapore ance was ever made, nor is there any strong indication
[1978] 2 MLJ 87, where ‘Rajah J at p 90 held that: that he did so in this amending order.
The Minister in this matter exercised his powers under The proposition in Wong Pot Heng’s case has been criti-
s 63 of the Act; if he had wished to exercise his pow- cized by the defendants for relying too heavily on Indian
ers under the Interpretation Act he should have said so and English authorities where no similar provisions such
in his declaration, which he did not. He has exercised as our s 20 of the Interpretation Act exists in both those
his powers only under s 63 of the Act, and s 63, as can
countries. This contention is completely unjustified,
be seen from a plain reading of it, gives him no power
to levy fees. when the rational of strict interpretation of this section
is based on the equitable and general principle that leg-
Though the senior federal counsel was quick to point islation should ‘deal with future acts, and ought not to
out that the above case was overruled by the Singapore change the character of past transactions carried upon
Court of Appeal reported in Chief Assessor, Property Tax, the faith of the then existing law ...’ per Willes J in Phillips
54
KAJING T UBEK V E KRAN BHD & O THERS
v Eyre (1870) LR 6 QB 1. Sarawak Board under the Sarawak Ordinance. This line
of approach could be related to the principle expressed
It is pertinent at this point to also refer to s 30 of the by Lord Brightman in Yew Bon Teu & Anor v Kenderaan
Interpretation Act, which provides under sub-s (1)(b) that: Bas Mara [1983] 1 MLJ 1 (at p 2) where:
30(1) The repeal of a written law in whole or in part ... no person has a vested right in any particular course
shall not - of procedure, but only a right to prosecute or defend a
suit according to the rules for the conduct of an action
(b) affect any right, privilege, obligation or liability for the time being prescribed.
acquired, accrued or incurred under the repealed law; In the opinion of this court, this argument is most unat-
or tractive for all intents and purposes. PU(A) 117 is not
and any such investigation, legal proceeding or rem- about a transfer of procedure, but the extinction of the
edy may be instituted, continued or enforced, and any EQA in its application on certain material activities in
such penalty, forfeiture or punishment may be imposed, the state of Sarawak. The Sarawak Ordinance and the
as if the repealing law had not been made. Sarawak Order by far are completely different pieces of
The essential element of this provision for the purpose legislation which, from the arguments of the learned At-
of this case centers upon the question of whether the torney General of Sarawak and the senior federal coun-
plaintiffs have acquired any rights. The defendants, of sel, stand on their own footing, separate and apart from
course, have strenuously argued that the plaintiffs have the EQA. Though it may regulate on a similar prescribed
acquired no right nor been granted any under the EQA activity as the EQA, they are based on its own enact-
and all the subsidiary legislation related thereto. On the ment with separate and distinct procedures. Where a
other hand, the plaintiffs have insisted upon a vested and/ right to prosecute an action exists, as in this case for the
or an accrued right to a copy of the EIA and to be heard plaintiffs, it is no longer procedural but substantive.
and make representation. Thus, in order to decide on
this matter, the EQA and its subsidiary legislation must Usefulness
be examined.
The learned Attorney General of Sarawak questions the
To start off with, s 34A(2) of the EQA provides that the usefulness of this declarations sought for by the plain-
EIA ‘shall be in accordance with the guidelines pre- tiffs. He emphasizes that after the EIA was submitted
scribed by the Director General ...’. With this, the Guide- by the first defendant, it was deliberated and approved
lines become a subsidiary piece of legislature when pub- by the Sarawak Board which consisted also of the Di-
lished by the Director General. Under paras 1.4.5, 1.6.1, rector General as one of its members. Under such cir-
3.4.7 and 4.5 of the Guidelines, public participation in cumstances, what useful purpose would it serve by or-
the form of obtaining a copy of the EIA, commenting dering the first defendant to re-submit an EIA to comply
thereto and making representation is explicitly provided with s 34A of the EQA? For after all, the Director Gen-
and in fact encouraged for a ‘responsible, interested and eral will similarly approve it as he did as a member of
participating public is important in environmental man- the Sarawak Board.
agement.’ All these are to be complied with before the
review panel makes its recommendation to the Director This submission is rather insubstantive as it is elemen-
General who, in turn, takes into consideration these rec- tary that it is not the Director General who approved the
ommendations before arriving at a decision. This proc- EIA in Sarawak, but the Sarawak Board. He may be a
ess is, therefore, mandatory and any decision made by constituent of the Sarawak Board but, it is not in his ca-
the Director General without the above procedure being pacity as the Director General under the EQA to approve
adhered to will be against the legal provisions of the EQA the EIA. The Sarawak Board and the Director General
and its subsidiary legislature. With this, the entitlement under the EQA are two separate institutions, each guided
to a copy of the EIA, commenting thereon by the public by its own set of legal procedures and the most notori-
becomes a right, and for this the plaintiffs are entitled to ous difference is the absence in the Sarawak Order of
such rights. Denial of these rights would be contrary to the right of the public to a copy of the EIA, and the right
the legal provisions and therefore should be rejected. to be heard and make representation before the approval
Consequently, since PU(A) 117 is a piece of legislation of the EIA is granted. This difference may change the
that repeals a written law and since the rights of the plain- whole course of things as input through public partici-
tiffs are affected by its effectiveness, s 30(1) of the Inter- pation as provided by the Guidelines may cause the ap-
pretation Act also prohibits it from being valid. proving authorities under the EQA to take an entirely
different cause of action, or to impose certain conditions
Mr. Shafee then argues that, in the alternative, PU(A) that may be beneficial to the project and the public as a
117 did not extinguish any vested/accrued rights of the whole. The very essence of EQA is to formulate ‘meas-
plaintiffs; it merely amended the procedure for the ap- ures that shall be taken to prevent, reduce or control the
proval of the EIA from the Director General to the adverse impact on environment.’ To achieve this, as laid
55
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
down under the Guidelines, public participation is nec- The first defendant complains that the plaintiffs are seek-
essary, for after all, the interaction between people and ing a declaration to compel them to comply with the
their environment is fundamental to the concept of im- EQA, but however, upon closer scrutiny, the substance
pact. Thus, it is relevant, and indeed mandatory for the of the plaintiffs’ grievances are actually against the sec-
authorities to hear the views of the public first, before ond and third defendants for the purported abdication of
granting its approval. Even if the views of the public are its statutory powers. Thus, the appropriate procedure is
rejected, of which they are entitled to do, at least the law an order of mandamus against the second defendant to
as promulgated by the elected representatives of the peo- exercise its statutory duty under O 53 of the Rules of the
ple is being followed. It makes a mockery of the whole High Court 1980 and not by way of this declaration.
issue to say that the EIA can be approved first and if the
public has any constructive ideas, they can submit later. In the opinion of this court, this conception is rather re-
This certainly is illogical, deprived of good sense and strictive in modern times when there is a dynamic devel-
sound reasoning. opment of declaratory Order in the field of administra-
tive law. The appropriate approach should be those ex-
Motives pressed by the authors de Smith, Woolf and Jouell in
Judicial Review of Administrative Actions (5th Ed) at p
The fourth and fifth defendants question the motive of 753:
the plaintiffs in applying for the declaration sought. They
feel that the underlying objective of the plaintiffs is to Normally a court will not be deterred from the grant-
avoid losing their land, corps, houses, and ancestral burial ing of a declaration because some alternative remedy
sites if the Bakun HEP is to proceed. The plaintiffs’ con- is available. The fact that on an application for judi-
cern, they add, ‘is not about environment per se, but about cial review an applicant could have obtained an order
of mandamus or prohibition is no reason for refusing
matters which can only be resolved under the provision
declaratory relief. The court in practice will adopt an
of the Land Code of Sarawak; by their actions, the plain- entirely pragmatic approach and having taken into ac-
tiffs can bolster their case against imminent extinguish- count the wishes of the parties will grant the form of
ment of their rights over state land occupied by them relief most likely to resolve satisfactorily the disputes
under native customary tenure.’ between the parties.
Indeed, the plaintiffs are apprehensive that their land, Based on this, this court will not refuse the plaintiffs’
crops, houses and ancestral burial sites will be devas- application solely on the ground that an alternative rem-
tated if the Bakun HEP is to proceed. But this does not edy is available. Instead, this court will consider the grant-
extinguish their vested rights to make representation and ing of the form of relief most likely to resolve the dis-
be heard before the EIA is approved by the Director putes between the parties.
General under the EQA and its lawful subsidiary legis-
lation. Relevant provisions of the Land Code of Sarawak (b) Collateral Attack
may deal and settle the affairs of the plaintiffs relating to
their land, but these are matters to be of concern only The learned Attorney General of Sarawak has accused
after the relevant approval is granted to the first defend- the plaintiffs of mounting a collateral attack when there
ant under the EQA. The rights of the plaintiffs under the is no jurisdictional defect visible on the face of PU(A)
EQA are distinct and separate from the rights under the 117. He supported this allegation with the case of Penang
Land Code of Sarawak which, this court is confident, Development Corp v Teoh Eng Huat & Anor [1993] 2
also provides adequately for the plaintiffs. But this does MLJ 97, where the dictum suggests that a collateral at-
not mean that just because the plaintiffs wish to enforce tack is not permissible when, ex facie the order does not
their rights under the EQA they possess a sinister mo- include obvious jurisdictional defect. The illustration
tive as claimed. In any event, the affidavits of the plain- from Wade on Administrative Law (6th Ed) at p 333 was
tiffs disclose their genuine concern of the environmental adopted by the learned judge in Penang Development
impact of the Bakun HEP, and all they wish is to be Corp’s case to explain the situation where collateral at-
granted a right to obtain a copy of the EIA, be heard and tack is allowed in cases when the order is bad on the face
make representation before the EIA is approved. Being of it. An example of such a case is where action for
people directly and peculiarly affected, the plaintiffs damages is brought against magistrates and judges of
would authoritatively be able to contribute some con- inferior courts on account of orders made by them out-
structive views for consideration by the authorities; af- side their jurisdiction. Such orders being bad on the face
ter all, the concept of environmental impact is the inter- of it could be treated by the court as invalid and the court
action between people and their environment. shall proceed directly to hear the claim for damages.
PU(A) 117 as it stands, claims the learned Attorney Gen-
Proper Procedure eral of Sarawak, has no obvious ex facie jurisdictional
defect which would entitle the plaintiffs to skip an initial
(a) mandamus
56
KAJING T UBEK V E KRAN BHD & O THERS
claim to invalidate this order first, before proceeding onto would not in effect turn the plaintiffs’ claim from one
a request for an order to compel the first defendant to character into another inconsistent character, this court
comply with the EQA. In short, this submission is that finds in the negative. The plaintiffs’ claim is for a decla-
the plaintiffs should have mounted a direct attack. ration to compel the first defendant to comply with a
specific provision of the EQA, but to do so now, in view
Mr. Nijar, in his reply, immediately explains that it was of the purported amendments made through PU(A) 117,
not the motive of the plaintiffs to carry out a collateral it is necessary to mount a direct attack lest it be accused
attack. He narrates the change of events caused by the of being in the nature of a collateral attack. The main
executive in altering the law which now makes the characteristic of the original prayer has not been changed
plaintiffs’ application appear like a collateral attack. He by this proposed amendment, for it is the continued in-
gives the following chronology of events to explain his sistence of the plaintiffs that the EQA still applies. In
position. order to do so now, it is only appropriate that the amend-
ment be included so that it will be comprehensive. How-
On 20 April 1995, the plaintiffs filed this application ever, for the sake of correct order, this court hereby al-
consequent to the Director General’s disclosure on 7 lows the proposed amendment to take precedent, rather
April 1995 that the Bakun HEP was no longer under than subsequent, to the existing words contained in prayer
his jurisdiction. 1. This would put all matters squarely in its proper pro-
On 20 April 1995, the same date as this application spective.
was filed PU(A) 117 was gazetted with retrospective
effect from 1 September 1994, which is the same day Conclusion
as the coming into force of the Sarawak Order.
The power of this court to make a declaration is almost
With this change, the nature of the plaintiffs’ claim ap- unlimited, except ‘limited by its own discretion’
pears to be a collateral attack when it was not at the time (Sterndale MR in Hanson v Radcliffe Urban District
of filing, for s 34A of the EQA, PU(A) 362/87 and the Council [1922] 2 Ch 490 at p 507). However, as cau-
Guidelines were all effective and operational to the whole tiously warned by Edgar Joseph Jr SCJ (as he then was)
of Malaysia. To remedy this, Mr. Nijar now seeks an in Petaling Tin Bhd v Lee Kian Chan & Ors [1994] 1
amendment to his first prayer in this application with the MLJ 657 (at pp 674-675):
inclusion of ‘... and that the Environment Quality (Pre-
scribed Activities) (Environmental Impact Assessment) ... decided cases still afford guidance, at the very least,
(Amendment) Order 1995 is invalid.’ as to what factors the courts have in the past regarded
as relevant when exercising their discretion as to
Firstly, this court finds these explanations tendered by whether to grant or refuse declaratory relief. Broadly
stated, the court must weigh the advantages of grant-
the plaintiffs acceptable to explain the approach under-
ing declaratory relief as against the disadvantages. The
taken by them which now appears to be in the form of a minimum requirement must be to achieve justice be-
collateral attack. To overcome such procedural objec- tween litigants and that is ‘a subject on which experi-
tions, the amendments sought should be allowed, as they ence may teach the courts of one generation to take
have answered all the questions positively posted in the what they may regard as a wider or more liberal view
propositions stated in Yamaha Motor Co Ltd v Yamaha than that of their predecessors’ (see Brickfield Proper-
Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 regarding ties v Newton [1971] 3 All ER 328 per Sachs LJ at p
amendments. 335 speaking of the rules of practice and procedure).
On the first question of whether the plaintiffs’ applica- From the facts and arguments presented, it is understand-
tion is bona fide, this court, after evaluating the explana- able why the plaintiffs are aggrieved. The legislature of
tion given by Mr. Nijar on the change of circumstances Malaysia has enacted the EQA to be applicable on the
caused by the retrospective nature of the relevant legis- entire nation. Subsidiary legislations relating thereto
lation and the contents of the submissions by all parties, were made by the executive delegated with powers to do
finds no other cause for the plaintiffs to make this appli- so. This, obviously, is to give full effect to the meaning
cation except with bona fide intention. For the second and purpose of the EQA. Under the guidelines prescribed
question of whether prejudice will be caused to the de- by the Director General, as provided for under the EQA
fendants by this amendment, this court finds none, for itself, a valid assessment of an EIA prepared by the
throughout the entire argument of the parties the nucleus project proponent of the prescribed activities cannot be
is whether this amendment order PU(A) 117 is valid. made without some form of public participation (para
The defendants have, in fact, based their entire submis- 1.4.5 of the Guidelines). This is essential, for interac-
sions on this point and covered practically all angles of tion between people and their environment is fundamental
this issue. This amendment will not prejudice them but to the concept of environmental impact (para 1.6.1 of
will deal with the actual issue so raised by all parties. In the Guidelines). For this, a right is vested on the plain-
respect of the final question of whether the amendment tiffs to obtain and be supplied with a copy of the EIA
57
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
coupled with the right to make representation and be hereby grants:
heard. While waiting to exercise their rights and being
assured by executives through their leaders - including (i) a declaration that the Environmental Quality (Pre-
those directly in charge that the relevant procedures of scribed Activities) (Environmental Impact Assess-
the EQA will be adhered to - the Minister suddenly strikes ment) (Amendment) Order 1995 is invalid;
a mortal blow by gazetting PU(A) 117. Though it is
claimed by the defendants that this amendment order only (ii) and a declaration that before the first defendant car-
alters the procedure in the evaluation of the EIA on the ries out the prescribed activity, viz the construction
Bakun HEP, in substance and infact and visible to all, it of the Bakun HEP, the first defendant has to comply
tantamounts to the removal of the entire rights of the with the EQA including s 34A of the said Act and/or
plaintiffs to participate and to give their views before the the guidelines prescribed by the second defendant
EIA is approved. This court shall not stand idly by to under s 34A of the said Act and the regulations made
witness such injustice especially when the plaintiffs have thereunder; and
turned to this institution to seek redress. If the mini-
mum requirement for the granting of a declaration is to (iii) costs to the plaintiffs.
achieve justice, then based on the facts and law of this
case, the plaintiffs amply qualify. For these, this court Order accordingly.
Report by Ng Sheau Jiuan
58
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
VAN HUYSSTEEN AND OTHERS NNO
v.
MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM
AND OTHERS 1996 (1) SA 283 (C) CAPE PROVINCIAL
DIVISION
FARLAM J 1995 June 15, 28 Case No 6570/95
Flynote: Sleutelwoorde erence.
Constitutional law - human rights - Protection of - Fun- Environmental law - Board of investigation in terms of s
damental rights in terms of chap 3 of Constitution of the 15 of Environmental Conservation Act 73 of 1989 - In-
Republic of South Africa Act 200 of 1993 - Persons who vestigation by board under that section markedly supe-
may claim relief - Claim by ‘person acting in his or her rior to a provincial departmental enquiry because of ad-
own interest’ in s 7(4)(b)(i) - Words ‘own interest’ wide vantages of evidence under oath, interrogation, public-
enough to cover an interest as trustee. ity and right to subpoena.
Constitutional law - Human rights - Right of access to Headnote: Kopnota
State information in terms of s 23 in chap 3 of Constitu-
tion of the Republic of South Africa Act 200 of 1993 - Section 15(1) of the Environmental Conservation Act
Section 24(b) must be generously interpreted - Does not 73 of 1989 empowers but does not obliged the Minister
merely codify existing law of natural justice - latter not of Environmental Affairs to appoint a board of enquiry
confined to audi alteram partem and nemo iudex in sua to assist him in evaluating a proposed development, and
causa rules - Test of ‘procedurally fair administrative consequently, no one can compel him to do so. It fol-
action’ under s 24(b) is whether principles and proce- lows too that, where a board has been appointed, no one
dures were followed which, in particular situation, were has the right to demand the amplification or amendment
right, just and fair - Procedurally unfair to owner of of its terms of reference.
nearby residential land for application under Land Use
Planning Ordinance 15 of 1958 (C) for rezoning of farm- Any Minister or official charged with making a rezon-
land as industrial land to be decided before completion ing decision under the Land Use Planning Ordinance 15
of investigation by board of enquiry appointed under s of 1985 (C) is obliged, by s 3 of the Environmental Con-
15(1) of Environmental Conservation Act 73 of 1989 into servation Act 73 of 1989, to exercise the powers con-
proposal to build steel mill on the land to be rezoned - ferred on him by the ordinance in accordance with the
Owner entitled to interdict against provincial function- policy determined under s 2 of that Act.
aries from deciding rezoning application pending finali-
sation of enquiry by board. By reasons of s 24 (b) of the Constitution of the Repub-
lic of South Africa Act 200 of 1993, anyone whose rights
Environmental law - Environmental policy - compliance will be affected by a rezoning decision has the right to
in terms of s 3 of Environmental Conservation Act 73 of procedural fairness in respect of such decision. That
1989 with policy determined under s 2 - Effect of on section does not merely codify the common law relating
provincial administration functionaries considering re- to natural justice which, in any event, is not limited to
zoning application under Land Use Planning Ordinance the audi alteram partem and nemo iudex in sua causa
15 of 1985 (C) - Functionaries obliged to exercise pow- rules.
ers in accordance with policy determined under s 2 of
Act. A party entitled to procedural fairness, as contemplated
in s 24 (b) of the Constitution, is entitled to ‘the princi-
Environmental law - Board of investigation in terms of s ples and procedures ... which, in any particular situation
15 of Environmental Conservation Act 73 of 1989 - Min- or set of circumstances, are right and just and fair’ (as
ister cannot be compelled to appoint board of investiga- stated by Lord Morris of Borth-y-Gest in Wiseman V.
tion in terms of s 15(1) - Likewise cannot be compelled Borneman [1971] AC 297 (HL) at 308H-309B [1969] 3
to amend or amplify an appointed board’s terms of ref- All ER 275 at 278(E). Even if that statement does not
59
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
correctly reflect the South African common law, then it amplify the Board’s terms of reference. The first respond-
is nonetheless the correct test to apply under s 24(b) of ent resisted the latter and further contended that the ap-
the Constitution, where the words ‘the right to plicants had not been entitled to the documents they had
procedurally fair administrative action’ must be gener- sought. The second, third, sixth and seventh respond-
ously interpreted and austerity of tabulated legalism must ents opposed the order sought in (b) above.
be avoided.
Held, that the applicants had no right to compel the first
An investigation by a board of enquiry appointed under respondent to appoint a board of enquiry under s 15(1)
s 15(1) of the Environmental Conservation Act of 1989 of the Environmental Conservation Act 1989 and there-
is markedly superior to a departmental investigation by fore no right to an order compelling him to amplify or
a provincial administration in relation to a rezoning ap- amend the board’s terms of reference accordingly, the
plication because of the advantages it has in attempting applications for the order on him to appoint a board and
to arrive at the truth in regard to disputed facts and to to amend and/or amplify the terms of reference of the
differing expert opinions, namely testimony on oath, in- board which he did appoint were dismissed with costs.
terrogation, publicity and the right to subpoena any per-
son who in its opinion may give material information Held, further, that, applying the interpretation of s 23 of
and/or who may produce any book document or thing the Constitution laid down in Nortje and Another v At-
which may have a bearing on the subject of the investi- torney-General, Cape, and Another 1995 (2) SA 460 (C)
gation, to give evidence and can be interrogated and/or ((1995 (1) SACR 446 (C)), the applicants did reason-
to produce the book, document or thing. ably require the document sought for the purpose of pro-
tecting their rights to the trust property which was po-
The sixth and seventh respondents proposed to build a tentially threatened by the proposed mill in order to ex-
steel mill on portion of a farm at Saldanha, near the West ercise their rights to object to the rezoning accordingly,
Coast National Park and the Langebaan Lagoon, and had the first respondent was ordered to pay the applicant’s
applied to the Provincial Administration of the Western costs of the application seeking the said documents.
Cape for the rezoning of the land under the Land Use
Planning Ordinance 15 of 1985 (C). The lagoon’s Held, further, in regard to the application for an order in-
wetlands were protected in terms of the Convention on terdicting the second and third respondents from making
Wetlands of International Importance to which South a decision on the rezoning application pending the finali-
Africa was a contracting party. Erf 2121 Langebaan was sation of the board’s investigation, that the words @in his
situated opposite the lagoon and was owned by the W or her own interest’ in s 7(4)(b)(i) of the Constitution were
Trust, the trustees of which were the first three appli- wide enough to cover an interest as a trustee and the first
cants. The first applicant was joined as fourth applicant three applicants accordingly had locus standi, as their
in his personal capacity as one of the trust beneficiaries. rights in respect of the trust property would be threatened
The trustees intended to build a holiday home or a per- if second and third respondents decided the rezoning ap-
manent home on the trust property. Expert opinion was plication in favour of sixth and seventh respondents be-
divided on whether the proposed mill would be environ- fore the finalisation of the board’s investigation; for the
mentally undesirable. The applicants applied in a Pro- trust property clearly had value as the potential site of a
vincial Division, as a matter of urgency, for a rule nisi holiday home and the Court could take judicial notice of
ordered (a) the first respondent (i) to make available, in the fact that sites for holiday homes would be more valu-
terms of s 23 of the Constitution, copies of all documents able if they were in close proximity to beautiful unspoilt
in his possession relevant to the proposed will (ii) to ap- natural areas and less valuable if such areas were pol-
point a board of investigation in terms of s 151(1) of the luted or otherwise detrimentally affected.
Environmental Conservation Act 1989 to assist him in
the evaluation of the proposed mill of certain specified, Held, further, in regard to the interdict sought, that s 3 of
related issues; (b) ordering the second and third respond- the Environmental Conservation Act 1989 obliged func-
ents (the Premier of the Western Cape Province and the tionaries charged with the duty of deciding on rezoning
Minister of Agriculture, Planning and Tourism of that applications under the Land Use Planning Ordinance 15
province) to hold in abeyance the rezoning decision, of 1985 (C) to exercise their powers in accordance with
pending the finalisation of the enquiry under s 15(1), the the policy determined under s 2 of the Act and that s
latter order to operate as an interim interdict pending the 24(b) of the Constitution entitled them to procedural fair-
return day of the rule nisi. Before the hearing, the first ness in respect of such rezoning decision accordingly,
respondent appointed a board of investigation under s the applicants had a right protectable by interdict.
15(1) and offered, without admitting that he was obliged
to do so, to make the relevant documents available to the Held, further, that it would be an infringement of the
applicants. The applicants accordingly did not pursue applicant’s rights to procedural fairness if the provincial
the orders sought in (a)Ii) and (ii) above but did ask for administration’s functionaries decided the rezoning ap-
an order calling on the first respondent to amend and/or plication before the board’s enquiry had been completed
60
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
because an investigation by the board of enquiry would SACR 56)
be markedly superior to that which those functionaries
could make, by reason of the very considerable advan- Sutter v Scheepers 1932 AD 165
tages of testimony on oath, interrogation, publicity, and
the right to subpoena witnesses which the board alone Turner v Jockey Club of South Africa 1974 (3) SA 633 (A)
had.
Wiseman v Borneman [1971] AC 297 (HL) ([1969] 3 All
Held, further, that the applicants would suffer irrepara- ER 275).
ble harm if the functionaries so decided because, although
their decision could be taken on review, review was a Case Information
discretionary remedy and there might be factors which
could induce the Court to refuse an order which might Application for a mandamus and an interdict. The facts
necessitate the demolition of an expensive steel mill; appear from the reasons for judgement.
furthermore, that damages would not be an adequate al-
ternative remedy because they would be extremely diffi- D P de Villiers QC (with him T D Potgieter) for the ap-
cult to quantity. plicants.
Held, further, that, insofar as it was relevant, the balance G D van Schalkwyk SC (with him R C Hiemstra) for the
of convenience or fairness favoured the granting of an first, second and third respondents.
interdict and that the Court should exercise its discretion
in favour of the applicants. (At 310C-D.) Interdict ac- M Helberg SC for the sixth and seventh respondents.
cordingly granted to applicants with costs, with leave
reserved to second and third respondents to set the mat- No appearance for the fourth, fifth, eighth and ninth re-
ter down for argument as to whether the order should be spondents.
uplifted on the ground that the finalisation of the board’s
decision was being unduly delayed. Cur adv vult.
The following decided cases were cited in the judgment Postea (June 28).
of the Court:
JUDGEMENT
Re Davis (1947) 75 CLR 409
Farmlam J; On 26 May 1995 Messrs A M van
Harnischfeger Corporation and Another v Appleton and Huyssteen, H P Venter and J D Coetzee, in their capaci-
Another 1993 (4) SA 479 (W) ties as trustees for the time being of the Wittedrift Trust,
instituted proceedings by notice of motion against the
Jacobs en ‘n Ander v Waks en Andere 1992 (1) SA following respondents:
521 (A)
(1) the Minister of Environmental Affairs and Tourism
Marlin v Durban Turf Club and Others 1942 AD 112 of the National Government, as first respondent;
Minister of Home Affairs and Another v Collins (2) the Premier of the Western Cape Province, as sec-
MacDonald Fisher and Another [1980] AC 319 (PC) ond respondent;
([1979] 3 All ER 21)
(3) the Minister of Agriculture, Planning and Tourism,
Nortje and Another v Attorney-General, Cape, and An- Western Cape, as third respondent;
other 1995 (2) SA 460 (C) (1995 (1) SACR 446)
(4) the Interim Council of the West Coast Peninsula
R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 (Vredenburg, Saldanha, St Helena Bay and Pater-
noster), as fourth respondent;
Russel v Duke of Norfolk and Others [1949] 1 All ER
109 (CA) (5) the Municipality of Langebaan, as fifth respondent;
S v Leepile and Others (1) 1986 (2) SA 333 (W) (6) Iscor Ltd, as sixth respondent;
S v Makwanyane and Another 1995 (3) SA 391 (CC) (7) Saldanha Steel (Pty) Ltd (a subsidiary of sixth re-
(1995 (2) SACR 1) spondent), as seventh respondent; and
S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) (8) the National Parks Board, as eighth respondent.
61
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Subsequently the Minister of Finance, Nature and Envi- (iv) first respondent was to be ordered to pay the
ronmental Affairs, Western Cape, was joined as ninth costs of the application; and
respondent. During the course of the argument I ordered
that Mr Van Huyssteen, in his personal capacity, be joined (v) second and third respondents were to be ordered
as fourth applicant. to pay the costs of the application, jointly and
severally with first applicant, only should they
In the original notice of motion first, second and third oppose it.
applicants sought, as a matter of urgency, orders in the
following terms: (b) an interim interdict in terms of (a)(iii) above pend-
ing the return day of the rule nisi sought; and
(a) a rule nisi in terms whereof:
(c) further and/or alternative relief on the basis that no
(i) first respondence was to be ordered to make avail- relief was to be sought against any party except first,
able to the applicants, in terms of s 23 of the Con- second and third respondents if such party did not
stitution of the Republic of South Africa Act 200 oppose the application.
of 1993, copies of all documentation in his pos-
session relevant to the proposed steel factory at In amplification of the last paragraph it was stated in the
Vredenburg-Saldanha, including all the corre- notice of motion that the respondents, apart from first,
spondence, inter-office and inter departmental second and third respondents, were only joined in so far
memoranda, minutes of meetings and discussions, as it might be necessary because of their interest in the
notes, impact studies, reports and disclosures of proposed steel development at Vredenburg-Saldanha, but
interest by any person(s) involved in the decision- that a costs order would be sought against any of these
taking process with reference to the proposed de- other respondents should they oppose the application.
velopment of a steel factory by sixth or seventh
respondent at Vredenburg-Saldanha; Fourth, fifth and eighth respondents do not oppose the
relief sought and abide the judgment of the Court. Ninth
(ii) first respondent was to be ordered to appoint a respondent has not given notice of his intention to op-
board of enquiry in terms of s 15(1) of the Envi- pose the application and he has not participated in any
ronmental Conservation Act 73 of 1989 in or- way in the proceedings.
der to assist him in the evaluation of:
On 7 June 1995 first respondent appointed a board of
(A) the proposed development of a steel factory investigation in terms of s 15(1) of the Environmental
by sixth respondent or seventh respondent Conservation Act 73 of 1989 to consider and report on
at Vredenburg-Saldanha; the environmental consequences of the proposed steel
mill development at Saldanha.
(B) the probable secondary industrial develop-
ment resulting therefrom should it proceed; On 8 June 1995, in an affidavit filed on his behalf, first
respondent offered, without admitting that he was obliged
(C) the probable development of the Saldanha to do so, to make available to the applicants the relevant
Bay harbour and/or are quay and in the sur- documents, subject to suitable arrangements.
rounding bay resulting therefrom should it
proceed; and The applicants no longer seek a rule nisi and an interim
interdict pending the return day inasmuch as those re-
(D) the probable impact of the foregoing on the spondents who oppose the application have had the op-
environment and, in particular, the portunity to the affidavits in support of their opposition.
Langebaan Lagoon, the West Coast National
Park and the surrounding environment, as In view of the fact that the first respondent has appointed
also the eco-system which is thereby sup- a board of investigation under s 15(1) of Act 73 of 1989
ported and housed; and has made the relevant documentation available to
them, the applicants no longer seek the relief summa-
(iii)second and third respondents were to be ordered rised in para (a)(i) and (ii) above. They persist, how-
to hold in abeyance the rezoning decision with ever, in asking for an order interdicting second and third
regard to the land on which it is proposed that respondents from proceeding with the rezoning applica-
the abovementioned development will take tion until after the board appointed by the first respond-
place, pending the finalisation of the ent has held its investigation and reported thereon. They
abovementioned enquiry in terms of s 15(1) of contend in this regard that if second and third respond-
the Environmental Conservation Act 73 of 1989; ents were in the circumstances of this case to decide the
rezoning application before the finalisation of the board’s
62
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
investigation, this would amount to an infringement of standi;
their right to procedurally fair administrative action which
is entrenched in s 24 (b) of the Constitution. (ii) they have not shewn that they have any right
which is being infringed;
They also ask for an order calling upon first respondent
to amend and/or amplify in certain respects the terms of (iii)even if they have shewn such a right, they have
reference of the board of investigation appointed by him. not shewn any infringement thereof; and
First respondent opposes the relief sought against him (iv) even if they have shewn all the aforegoing, they
and contends: have an alternative remedy;
(i) that applicants are not entitled to an order in respect (b) alternatively, if the interdict sought is in essence a
of the documents because they do not require any temporary interdict, then the application should fail
documents at this stage to exercise or protect any of because:
their rights;
(i) they have shewn no prima facie right;
(ii) that the applicants were not entitled to an order com-
pelling him to appoint a board of investigation be- (ii) they have failed to indicate any possibility of
cause the provisions of s 15(1) of Act 73 of 1989 are irreparable harm;
directory and/or empowering and not peremptory;
and (iii)they have failed to prove that the balance of fair-
ness is in their favour; and
(iii)that they are accordingly not entitled to an order in-
terdicting them from taking the relevant rezoning de- (iv) even if they have shewn all the aforegoing, the
cision pending the finalisation of the investigation Court in the exercise of its discretion should still
to be conducted by the board appointed by first re- refuse to grant an interdict in this case.
spondent. They contend that applicants have no right
to have the rezoning decision held in abeyance until In the following paragraphs I shall endeavour to set out
the board has conducted its investigation and made some of the facts which are common cause because the
its findings and/or recommendations because, so it parties.
is contented, there is no obligation on second or third
respondent to take such findings or recommenda- Sixth respondent intends erecting a steel mill, which will
tions into account before making a decision on the occupy an area of between 40-80 hectares on portions of
rezoning application and, in the circumstances of this the farm Yzervarkensrug at Saldanha. The land in ques-
case, it cannot be said that they will be any proce- tion is near the West Coast National Park and the Langebaan
dural unfairness if the rezoning decision is made Lagoon. In terms of the Convention on Wetlands of Inter-
before the board has completed its work. national Importance especially as Waterfowl Habitat
(Ramsar 1971), to which South Africa is a contracting
They contend further that applicants have no well- party, South Africa has undertaken to protect, inter alia,
grounded apprehension of irreparable harm if the interim the wetlands of the Langebaan Lagoon which are part of a
relief is not granted and that, in any event, applicants sensitive eco-system of international importance.
have not shown, on the assumption that the interdict
sought is of a temporary nature, that the balance of con- Erf 2121, Langebaan (to which I shall hereinafter refer
venience is in their favour. In this latter regard they con- as ‘the trust property’) is registered in the name of the
tend that applicants have not made out a case that it will trustees for the time being of the Witterdrift Trust, of
be legally impossible for them to enforce, by way of re- which, as I have said, the first three applicants are the
view, the rights to which they lay claim. trustees for the time being. Mr Van Huyssteeen in his
personal capacity is one of the beneficiaries of the trust.
Sixth and seventh respondents oppose the interdict sought The intention of the trustees is eventually to build a holi-
against second and third respondents (it being common day home or a permanent home on the trust property,
cause that the granting of such an interdict would ad- which is situated at Meeuklip, Langebaan, right oppo-
versely affect sixth and seventh respondents) on the fol- site the lagoon.
lowing grounds:
Sixth respondent has applied to the Provincial Adminis-
(a) that the order sought amounts to a final interdict tration of the Western Cape in terms of the provisions of
which should not be granted because: the Land Use Planning. Ordinance 15 of 1985 (C) for
the rezoning of the land so that a steel mill may be erected
(i) applicants do not have the necessary locus and operated thereon. A difference of opinion has arisen
63
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
between experts as to whether the steel mill develop- planner in the Department of Housing, Local Govern-
ment is desirable in all the circumstances. Some experts ment and Planing (Land Affairs) of the Provincial Ad-
support the proposed development while others are op- ministration of the Western Cape, explains the procedure
posed to the proposed development at this stage have being followed by second and third respondents in con-
expressed the view that not enough investigation has been sidering the rezoning application. He states that the views
done for a decision to be taken as to whether the pro- of interested parties and experts, even those with reser-
posed development should be allowed to proceed. vations regarding the desirability of the project, are from
time to time obtained and they are given adequate op-
Included in the papers are an evaluation of a CSIR envi- portunity to bring their views to the attention of second
ronmental impact study on the proposed steel mill project and third respondents. The expertise of the Cape Nature
which was drawn up by the Council for the Environment Conservation, a division of the Provincial Administra-
at the request of first respondent and comments on the tion, is also being utilised so as to ensure that eventually
CSIR environmental impact study prepared by Dr P A a well considered decision can be made regarding the
Cook, a senior lecturer in Zoology at the University of rezoning application. He referred to a number of meet-
Cape Town, who is the chairman of the Mariculture As- ings, inspections and discussions which have taken place
sociation of Southern African and an internationally rec- in order to indicate the thoroughness with which second
ognised authority on shellfish; Dr G A Robinson, the chief and third respondent and the Western Cape Provincial
executive of the eighth respondent (who made the com- Administration have been handling the matter. He ad-
ment in his personal capacity); Dr Allan Heydorn, a spe- mits that the Provincial Administration does not have the
cialist consultant to the Southern African branch of the same statutory powers but denies that second respond-
World Wide Fund for Nature, the world’s leading non- ent will not be able to make a lawful and considered de-
governmental conservation body; and Mr M A Sweijid, cision in terms of Ord 15 of 1985 without such powers.
a lecturer in the Department of Zoology, who is currently
engaged in postgraduate research relating to abalone on Before the submissions of counsel are considered it is
the South African coast. desirable to set out the relevant statutory provisions of
the Constitution, the Environment Conservation Act 73
Applicants contend that the best way to resolve (in so far of 1989, the general policy determined in terms of s 2(1)
as resolution is possible) the serious difference of opin- thereof, and the Land Use Planning Ordinance 15 of 1985
ion which has arisen between the experts regarding the (Cape).
desirability of sixth and seventh respondents’ being al-
lowed to proceed with the proposed steel mill project in Section 7 of the Constitution provides as follows:
proximity to the sensitive environment, in respect of
which South Africa has international obligations under ‘(1)The chapter shall bind all legislative and execu-
the Ramsar Convention, is by way of an investigation tive organs of state at all levels of government.
under s 15 of Act 73 of 1989.
(2) This chapter shall apply to all law in force and all
They say further that a departmental investigation and administrative decisions taken and acts per-
consideration of the rezoning application by second and formed during the period of operation of this
third respondents, assisted by the officials and resources Constitution.
of the Provincial Administration of the Western Cape,
will, from the nature of things, be superficial and no real (3) Juristic persons shall be entitled to the rights con-
substitute for the thorough and extensive investigation tained in this chapter where, and to the extent
in depth which will be able to be carried out by the board that, the nature of the rights permits.
of investigation in terms of s 15 of Act 73 of 1989, which,
unlike the provincial procedures, will involve the sub- (4) (a) When an infringement of or a threat to any
poenaing of witnesses and documents, the interrogation right entrenched in this chapter is alleged, any
under oath, in public, of witnesses with the opportunity person referred to in para (b) shall be entitled to
given to interested parties, subject to the control by the apply to a competent court of law for appropri-
chairman of the board of investigation, to present evi- ate relief, which may include a declaration of
dence and rebut opposing opinions which are believed rights.
to be erroneous. In this regard it is relevant to point out
that the chairman of the board appointed by first respond- (b) The relief referred to in para (a) may be sought
ent is Dr the Honourable J H Steyn, a former Judge of by -
this Court.
(i) a person acting on his or her own interest;
In an affidavit filed on behalf of second and third re-
spondents, Mr Vice Hilary Theunissen, a deputy chief Section 23 of the Constitution provides as follows:
64
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
‘Every person shall have the right to access to all in- (a) the protection of ecological processes, natural sys-
formation held by the State or any of its organs at tems and natural beauty as well as the preservation
any level of government in so far as such information of biotic diversity in the natural environment;
is required for the exercise or protection of any of his
or her rights’. (b) the promotion of sustainable utilization of species
and ecosystems and the effective application and re-
Section 24 of the Constitution read as follows: use of natural resources;
‘Every person shall have the right to- (c) the protection of the environment against
disturbance, deterioration, defacement, poisoning,
(a) lawful administrative action where any of his or pollution or destruction as a result of man-made
her rights to interests is affected or threatened; structures, installations, processes or products or
human activities; and
(b) procedurally fair administrative action where any
of his or her rights or legitimate expectations is (d) the establishment and maintenance of acceptable
affected or threatened; human living environment in accordance with the
environmental values and environmental needs of
(c) be furnished with reasons in writing for adminis- communities;
trative action which affects any of his or her rights
or interests unless the reasons for such action have (e) the promotion of the effective management of cul-
been made public; and tural resources in order to ensure the protection and
responsible use thereof;
(d) administrative action which is justifiable in rela-
tion to the reasons given for it where any of his or (f) the promotion of environmental education in order
her rights is affected or threatened.’ to establish an environmentally literate community
with a sustainable way of life;
Section 35(1) and (3) of the Constitution provides as
follows: (g) the execution and co-ordination of integrated envi-
ronmental monitoring programmes.
‘(1)In interpreting the provisions of this chapter a
court of law shall promote the values which un- (1A) The Minister may, in determining the policy under
derlie an open and democratic society based on ss (1), if in the opinion of the Minister it will further the
freedom and equality and shall, where applica- objectives mentioned in ss (1) (a), (b), (c), (d), (e) (f)
ble, have regard to public international law ap- and (g), determine norms and standards to be complied
plicable to the protection of the rights entrenched with.
in this chapter, and may have regard to compa-
rable foreign case law. (2) The policy contemplated in ss (1) shall be determined
by the Minister after consultation with -
...
(a) each Minister charged with the administration of any
(3) In the interpretation of any law and the law which in the opinion of the Minister relates to a
application and development of the common law matter affecting the environment;
and customary law, a court shall have due regard
to the spirit, purport and objects of this chapter.’ (b) the Minister of State Expenditure;
Sections 2 and 3 of the Environment Conservation Act (c) the Administrator of each province; and
73 of 1989, which make up Part 1 of the Act, read as
follows: (d) the council.
‘2 (1) Subject to the provisions of ss (2) the Minister (3) The Minister may at any time, subject to the provi-
may by notice in the Gazette determine the general policy, sions of ss (2), by like notice substitute, withdraw or
including policy with regard to the implementation and amend the policy determined in terms of ss (1).
application of a convention, treaty or agreement relating
to the environment which has been entered into or rati- 3(1) Each Minister, Administrator, local authority and
fied, or to be entered into or ratified, by the Government government institution upon which any power has been
of the Republic, to be applied with a view to - conferred or to which any duty which may have an in-
fluence on the environment has been assigned by or un-
65
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
der any law, shall exercise such power and perform such relevant parties in writing thereof.
duty in accordance with the policy referred to is s2.
(4) The board of investigation may for the purposes of
(2) The Director-General shall ensure that the policy the investigation -
which has been determined under s 2(1), is complied with
by each Minister, Administrator, local authority and gov- (a) instruct any person who in its opinion may give
ernment institution referred to in ss (1), and may - material information concerning the subject of the
investigation or who it believes has in his posses-
(a) take any steps or make any inquiries he deems fit in sion or custody or under his control any book, docu-
order to determine if the said policy is being com- ment or thing which has any bearing upon the sub-
plied with by any such Minister, Administrator, lo- ject of the investigation, to appear before such board;
cal authority or government institution; and
(b) administer an oath to or accept an affirmation from
(b) if in pursuance of any step taken or inquiry made any person called as a witness at the investigation;
under para (a), he is of opinion that the said policy and
is not being complied with by any such Minister,
Administrator, local authority or government in- (c) call any person present at the investigation as a wit-
stitution, take such steps as he deems fit in order ness and interrogate him and require him to produce
to ensure that the policy is complied with by such any book, document or thing in his possession or
Minister, Administrator, local authority or gov- custody or under his control.
ernment institution’.
(5) An instruction referred to in ss (4)(a) to appear be-
In Part II of the Act provision is made for the establish- fore the board of investigation shall be by way of a
ment of a Council for the Environment and a Committee subpoena signed by the chairman of the board.
for Environmental Co-ordination and the appointment
of boards of investigation in terms of s 15, which reads (6) (a)A session of the board of investigation shall be
as follows: held in public.
‘(1)The Minister shall from time to time appoint a board (b) The decision of the board and the reason therefor
of investigation to assist him in the evaluation of any shall be reduced to writing.
matter or any appeal in terms of the provisions of
this Act. (7) A member of the board of investigation who is not
in the full-time employment of the State may be paid
(2) The board of investigation shall consist of - from money appropriated by Parliament for that pur-
pose such remuneration and allowances as the Min-
(a) (i)a Judge or retired Judge of the Supreme Court of ister may, with the concurrence of the Minister of
South Africa; State Expenditure, determine either in general or in
any particular case.
(ii) a magistrate or retired magistrate;
(8) The Director-General shall designate, subject to the
(iii)any person admitted in terms of the Admission of provisions of the Public Service Act 111 of 1984, as
Advocates Act 74 of 1964 to practice as an advo- many officers and employees of the Department as
cate; or; may be necessary to assist the board in the adminis-
trative work connected with the performance of the
(iv) any person admitted in terms of the Attorney’s Act functions of the board of investigation: Provided that
53 of 1979 to practice as an attorney, who in the with the approval of the Minister such administra-
opinion of the Minister has a knowledge of matters tive work may be performed by any person other
relating to the environment, and is designated by him than such officer or employee at the remuneration
as chairman; and and allowances which the Minister with the concur-
rence of the Minister of State Expenditure may de-
(b) such number of other persons as the Minister deems termine.’
necessary and in his opinion have expert knowledge
of the matter which the board of investigation has to Part V of the Act, as its name indicates, deals with the
consider. control of activities which may have a detrimental effect
on the environment. Sections 21 and 22, which are con-
(3) A session of the board of investigation shall take tained in this Part of the Act, deal with the identification
place on the date and at the time and place fixed by of activities which will probably have a detrimental ef-
the chairman, who shall advise the Minister and the fect on the environment and the prohibition of the un-
66
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
dertaking of identified activities. They read as follows: such manner as may be prescribed.
’21(1) The Minister may by notice in the Gazette iden- (3) The Minister or the Administrator, or a local authority
tify those activities which in his opinion may have a sub- or officer referred to in ss (1), may at his or its discre-
stantial detrimental effect on the environment, whether tion refuse or grant the authorization for the proposed
in general or in respect of certain areas. activity or an alternative proposed activity on such con-
ditions, if any, as he or it may deem necessary.
(2) Activities which are identified in terms of ss (1)
may include any activity in any of the following (4) If a condition imposed in terms of ss (3) is not
categories, but are not limited thereto:land use being complied with, the Minister, any Adminis-
and transformation; trator or any local authority or officer may with-
draw the authorization in respect of which such
(a) land use and transformation; condition was imposed, after at least 30 days’
written notice was given to the person concerned.’
(b) water use and disposal;
Part VII of the Act contains certain general provisions,
(c) resource removal, including natural living resources; among which are s 31A (which was inserted by s 19 of
Act 79 of 1992), which deals with the powers of the
(d) resource renewal; Minister, and Administrator (now a provincial premier),
local authorities and government institutions where the
(e) agricultural processes; environment is damaged, endangered or detrimentally
affected and s 34, which deals with compensation for
(f) industrial processes; loss. They read as follows:
(g) transportation; ’31A(1) If, in the opinion of the Minister or the Admin-
istrator, local authority or government institution con-
(h) energy generation and distribution; cerned, any person performs any activity or fails to per-
form any activity as a result of which the environment is
(i) waste and sewage disposal; or may be seriously damaged, endangered or detrimen-
tally affected, the Minister, Administrator, local author-
(j) chemical treatment; ity or government institution, as the case may be, may in
writing direct such person -
(k) recreation
(a) to cease such activity; or
(3) The Minister identifies an activity in terms of ss (1)
after consultation with - (b) to take such steps as the Minister, Administrator,
local authority or government institution, as the case
(a) the Minister of each department of State responsi- may be, may deem fit, within a period specified in
ble for the execution, approval or control of such the direction, with a view to eliminating, reducing
activity; or preventing the damage, danger or detrimental ef-
fect.
(b) the Minister of State Expenditure; and
(2) The Minister or the Administrator, local authority
(c) the Administrator of the province concerned. or government institution concerned may direct the
person referred to in ss (1) to perform any activity
22(1) No person shall undertake an activity identified in or function at the expense of such person with a view
terms of s 21(1) or cause such an activity to be under- to rehabilitating any damage caused to the environ-
taken except by virtue of a written authorization issued ment as a result of the activity or failure referred to
by the Minister or by an Administrator or a local author- in ss (1), to the satisfaction of the Minister, Admin-
ity or an officer, which Administrator, authority or of- istrator, local authority or government institution, as
ficer shall be designated by the Minister by notice in the the case may be.
Gazette.
(3) If the person referred to in ss (2) fails to perform the
(2) The authorization referred to in ss (1) shall only be activity or function, the Minister, Administrator, lo-
issued after consideration of reports concerning the cal authority or government institution, depending
impact of the proposed activity and of alternative on who or which issued the direction, may perform
proposed activities on the environment, which shall such activity or function as if he or it were that per-
be compiled and submitted by such persons and in son and may authorize any person to take all steps
67
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
required for that purpose. * The State, every person and every legal entity has a
responsibility to consider all activity that may have
(4) Any expenditure incurred by the Minister, an Ad- an influence on the environment duly and to take all
ministrator, a local authority or a government insti- reasonable steps to promote the protection, mainte-
tution in the performance of any function by virtue nance and improvement of both the natural environ-
of the provisions of ss (3), may be recovered from ment and the human living environment.
the person concerned.’
* The maintenance of natural systems and ecological
’34(1) If in terms of the provisions of this Act limita- processes and the protection of all species, diverse
tions are placed on the purposes for which land may be habitats and land forms is essential for the survival
used or on activities which may be undertaken on the of all life on earth.
land, the owner of, and holder of a real right in, such
land shall have a right to recover compensation from the * Renewable resources are part of complex and
Minister or Administrator concerned in respect of actual interlinked ecosystems and must through proper
loss suffered by him consequent upon the application of planning and judicious management be maintained
such limitations. for sustainability. Non-renewable natural resources
are limited and their utilisation must be extended
(2) The amount so recoverable shall be determined by through judicious use and maximum reuse of mate-
agreement entered into between such owner or holder rials with the object of combating further over-ex-
of the real right and the Minister or Administrator, ploitation of these resources.
as the case may be, with the concurrence of the Min-
ister of State Expenditure. * The concept of sustainable development is accepted
as the guiding principle for environmental manage-
(3) In the absence of such agreement the amount so ment. Development and educational programmes
to be paid shall be determined by a court referred are necessary to promote economic growth, social
to in s 14 of the Expropriation Act 63 of 1975 and welfare and environmental awareness, to improve
the provisions of that section and s 15 of that Act standards of living and to curtail the growth in the
shall mutatis mutandis apply in determining such human population. Such programmes must be for-
amount.’ mulated and applied with due regard for environ-
mental considerations.
Included in this part of the Act is s 40, which provides
for the State, including a provincial administration, to * A partnership must be established between the State
be bound by the provisions of the Act. and the community as a whole, the private sector,
developers, commerce and industry, agriculture, lo-
Acting in terms of s 2(1) of the Act, the then Minister of cal community organisations, non-governmental or-
Environmental Affairs, Mr J A van Wyk, issued a notice ganisations (representing other relevant players), and
(No 51 of 1994, which was published in Government the international community so as to pursue envi-
Gazette 15428 of 21 January 1994) containing the gen- ronmental goals collectively.’
eral policy determined by him thereunder.
The section on environmental management systems con-
The preamble contains the following: tains the following paragraph:
‘The environmental policy is based on the following ‘Each Minister, Administrator, local authority and
premises and principles: government institution upon which any power has
been conferred or to which any duty which may have
* Every inhabitant of the Republic of South Africa has an influence on the environment has been assigned
the right to live, work, and relax in a safe, produc- by or under any Act shall exercise such power and
tive, healthy and aesthetically and culturally accept- perform such duty with a view to promoting the ob-
able environment and therefore also has a personal jectives stated in s 2 of the Environment Conserva-
responsibility to respect the same right of his fellow tion Act 73 of 1989.’
man.
the section on land use and nature conservation reads as
* Every generation has an obligation to act as a trus- follows:
tee of its natural environment and cultural heritage
in the interest of succeeding generations. In this re- Judicious use of land is an important foundation of envi-
spect, sobriety, moderation and discipline are nec- ronmental management. All government institutions, and
essary to restrict the demand for fulfillment of needs also private owners and developers, must therefore plan
to sustainable levels. all physical activities, for example forestry, mining, road
68
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
building, water storage and supply, agriculture, indus- cation does not fall to be decided by the relevant coun-
trial activities and urban development in such a way as cil.)
to minimise the harmful impact on the environment and
on man and, where necessary, to facilitate rehabilitation. Section 36 of the Ordinance provides as follows:
A balance must be maintained between environmental
conservation and essential development. Before embark- ’36(1) Any application under chap II or III shall be
ing on any large-scale or high-impact development refused solely on the basis of a lack of desirability of
project, a planned analysis must be undertaken in which the contemplated utilisation of land concerned includ-
all interested and affected parties must be involved. In ing the guideline proposals included in a relevant
order to attain the sustainable utilisation of resources, structure plan in so far as it relates to desirability, or
the principles of integrated environmental management on the basis of its effect on existing rights concerned
are accepted as one of the management mechanisms. (except any alleged right to protection against trade
competition).’
Particular efforts must be made to conserve valuable high-
potential agricultural land for agricultural purposes, to It is clear, in my view, that the contentions of the parties
protect water resources and sites and objects of signifi- in this case raise the following questions for decision:
cant cultural interest; to combat deforestation of indig-
enous forests, soil erosion, desertification; and to pre- 1. Have the applicants the right to an order compelling
vent the destruction of wetlands and other environmen- first respondent to appoint a board of investigation?
tally sensitive areas. Among the main attractions South
Africa has to offer as a tourist destination are its aes- 2. Have they the right to ask for an order compelling
thetic qualities and the scenic beauty of the environment, him to amend and/or amplify the terms of reference
assets that must also be considered. Scientific conserva- of the board appointed by him?
tion principles must be applied in all land-use planning.
3. Have they the right to have documentation in the
Nature conservation possession of the first respondent relating to the pro-
posed steel mill development made available to
A national nature conservation plan, including the com- them?
pilation of a complete inventory of and a classification
system for protected areas will be developed by the De- 4. Have the applicants locus standi to claim an order
partment of Environmental Affairs to ensure the mainte- requiring second and third respondents to refrain
nance of South Africa’s biodiversity. The interests and from deciding the rezoning application before the
wishes of the local populations must be considered in board appointed in terms of s 15(1) has finalised its
the establishment of each new protected area. Effective investigation?
management and control should be established to make
possible the sustainable use of economically viable natu- 5. Have the applicants shewn that they have a right
ral resources, for example game, marine resources, veld which is going to be infringed?
and natural forests.
6. If they have shewn that they have such a right, have
The maintenance of the ecological integrity and natural they shewn an actual or threatened infringement?
attractiveness of protected areas must be pursued as a
primary objective. 7. Have the applicants an alternative remedy?
All responsible government institutions must apply 8. Have the applicants shewn that they will suffer ir-
appropriate measures, based on sound scientific reparable harm unless the interdict sought is granted?
knowledge, to ensure the protection of designated
ecologically sensitive and unique areas, for example 9. Have the applicants shewn that the balance of fair-
wilderness areas, fynbos, grasslands, wetlands, is- ness is in their favour?
lands, mountain catchment areas, indigenous forests,
deserts, Antarctica and the coastal zone.’ 10. Should the Court in the exercise of its discretion grant
the interdict sought?
Section 16(1) of the Land Use Planning Ordinance 15 of
1985, which is to be found in Part II of the ordinance, (1) Have the applicants the right to compel first respond-
provides that either the Administrator (now the Premier) ent to appoint a board of investigation?
or, if authorised thereto by the provisions of a structure
plan, a council may grant or refuse an application by an In support of his submission that the applicants have such
owner of land for the rezoning thereof. (It is common a right Mr De Villiers QC, who with Mr Potgieter ap-
cause in the present matter that sixth respondent’s appli- peared on behalf of the applicants, relied very strongly
69
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
on the use of the word ‘shall’ in the English (signed) text a board they have no right to demand the amplification
of s 15(1) of Act 73 of 1989. (The Afrikaans text merely or amendment of its terms of reference. The Minister is
uses the present tense (‘Die Minister stel van tyd tot tyd empowered to appoint a board to advise him on matters
‘n ondersoekaan ...’).) on which he desires assistance. Applicants have no right
to tell him that he should be assisted on some other mat-
It is however clear, as Mr Van Schalkwyk SC , who ap- ter which he has not set out in the board’s terms of refer-
peared with Mr Hiemstra on behalf of the first, second ence.
and third respondents, submitted that the use of the ex-
pression ‘shall’ does not necessarily indicate a legisla- (3) Have the applicants the right to have the documen-
tive intention to impose an obligation: in some cases a tation in the possession of first respondent relating
provision containing the word ‘shall’ may be merely di- to the steel mill project made available to them?
rectory or empowering. Most of the cases in which the
word ‘shall’ has been construed concerned the question Section 23 of the Constitution was considered by the Full
as to whether the failure to do something which the stat- Bench of this Court in Nortje and Another v Attorney-
ute in question has said ‘shall’ be done, visits the trans- General, Cape, and Another 1995 (2) SA 460 (C) (1995
action concerned with nullity: see Suter v Scheepers 1932 (1) SACR 446) in relation to a claim by accused persons
AD 165 and the many cases in which it has been re- to the statements contained in the police docket relating
ferred to. This is not such a case: here the question to be to their case. At 474F-475A (460e-j (SACR)) Marais J
answered is whether the use of the word indicates an (as he then was), with whom Fagan DJP and Scott J con-
obligation to act as opposed to an empowerment. As curred, said:
Starke J said in the Australian case of Re Davis (1974)
75 CLR 409 at 418-19: ‘The right of access to the information of which s 23
is plainly not absolute and unqualified. Apart from
‘The word “shall” does not always impose an abso- potential limitations of the right which might be per-
lute and imperative duty to do or omit the act pre- missible in terms of s 33(1), s 23 contains its own quali-
scribed. The word is facultative: it confers a faculty fication in that the information requested must be “re-
or power .... The word “shall” cannot be construed quired for the exercise or protection of any” of the
without reference to its context.’ rights of the person concerned. In resisting the ap-
plicants’ contentions, Mr. Slabbert, on behalf of the
From the context it is clear, in my view, that the Minister State, submitted that “required” is to be understood
is not obliged to appoint a board. The purpose for which as “needs” rather that “desires”, and that, in this
a board is appointed is to assist the Minister in evaluat- sense, it cannot be said that an accused person re-
ing a matter. As Mr Van Schalkwyk contended, there is quires the witnesses’ statements in the police docket
no express provision that the Minister is obliged to fol- in order to exercise or protect his rights. Such a nar-
low the advice given. Nor is he precluded from making row construction of the word “required” does not
a decision in cases where he has not appointed a board. seem to me to be justified. I think that the word must
That this is so is borne out by the use of the expression be understood as meaning “reasonably required”, and
‘from time to time’, which is a clear indication that the I have little doubt that the statements in the police
appointment of a board is not a prerequisite for the con- docket of witnesses to be called, as well as of those
sideration of every matter or appeal. This is a clear indi- not to be called, would ordinarily be reasonably re-
cation in my view that the provision in question is per- quired by an accused person in order to prepare for
missive but not obligatory. trial in a criminal prosecution. That it is his or her
right to defend himself or herself is, of course, be-
From the fact that the first respondent, in my view, is yond question. There may well be other material in
empowered, but not obliged, by s 15(1) of Act 73 of 1989 the police docket which is not reasonably required.
to appoint a board it must follow, as Mr Van Schalkwyk The reasonableness of the request must be judged, I
contended, that no-one can compel him to appoint a think, by taking the respective positions of both the
board. accused and the State into account. It cannot be right
to view the question solely through the accused’s spec-
Consequently the first question arising for decision in tacles. One thinks, for instance, of correspondence
this case must be decided against the applicants. between the prosecutor or Attorney-General and the
investigating officer, or communications between the
(2) Have the applicants the right to an order compel- investigating officer and his superior regarding the
ling first respondent to amplify and/or amend the progress of the investigation, or possible leads that
board’s terms of reference? could be followed. In the present case, however, it is
only the witnesses’ statements that are in issue.’
I think that it must follow, as Mr Van Schalkwyk submit-
ted, that if applicants cannot compel the appointment of In the present case no question of a possible limitation
70
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
in terms of s 33(1) of the Constitution need be considered and seventh respondents, whose counsel, Mr
because Mr Van Schalkwyk did not suggest that, if the Helberg,contended, relying on Jacobs en ‘n Ander v Waks
documentation sought by the applicants under s 23 was en Andere 1992 (1) SA 521 (A) at 533J-534E, that appli-
required by them for the exercise or protection of any of cants had to show that they had a direct interest in the
their rights, first respondent could refuse to make it relief sought and that they had not done so. He con-
available because of any limitation on applicants’ right tended further, relying again on the Jacobs case (at 540H),
under s 23 of the Constitution arising under s 33 (1) that a person asking for relief cannot lay claim to locus
thereof. standi if his interest in the case is no more and no less
than the interest which all citizens have therein.
In the present case the first, second and third applicants,
as owners of the trust property, and fourth applicant as a In developing this submission he referred to the fact that,
beneficiary under the trust did in my view reasonably although the papers reveal that the trust property is situ-
require the documentation referred to in the relevant para- ated at Meeuklip, Langebaan, right opposite the lagoon,
graph in the notice of motion for the purpose of protect- there is no indication as to how far it is from the pro-
ing their rights to the trust property which was poten- posed development.
tially threatened by the proposed steel mill if it was un-
desirable (so that the rezoning stood to be refused under He referred further to the fact that the applicants referred
s 36 of the ordinance) in order to exercise their rights to to the structure plan for the Vredenburg-Saldanha area
object to the rezoning, which they had because of their which had been approved in terms of s 4 of the ordi-
interest therein flowing from the trust property which, it nance and which provided that the area in question, ie
will be remembered, was right opposite the Langebaan the area where the proposed steel mill was to be built,
lagoon, the area which, in view of some at least of the was to be allocated for heavy industry. He pointed to the
experts who have expressed views on the topic, may well fact that there was no evidence before the Court that the
be detrimentally affected by the proposed development. trust property was in the area for which the structure plan
Applicants were also able to protect their right by per- was approved and said that prima facie it did not fall in
suading first respondent to exercise his powers under Act that area: clearly, so he contended, the areas of
73 of 1989. It is to be noted that s 23 of the Constitution Vredenburg-Saldanha on the one hand and Langebaan
does not limit in any way the rights for the exercise or on the other are not in the same municipal area.
protection of which an applicant is entitled to seek ac-
cess to officially held information, nor is there any limi- He referred further to the fact that first applicant said in
tation or restriction in respect of the manner or form in his affidavit that
which such exercise or protection will take place.
‘die belewenis en genot voortspruitend uit die
I am satisfied therefore that the applicants have made eienaarskap van hierdie eiendom (ie the trust prop-
out a case under s 23 of the Constitution in respect of erty) hou direk verband met die belewenis en genot
documentation in first respondent’s possession relating voortspruitend uit die strandmeer, die natuur en die
to the steel mill project. Whether all the documentation omgewing aldaar. Die waarde van hierdie eiendom
sought having been made available without prejudice by hou na my mening ook daarmee verband”, and ref-
first respondent, the only question to be considered at ereed to the fact that the applicants do not allege that the
this stage is whether the applicants are entitled to costs. value of the property as a result of the development will
be prejudicially affected or reduced. In the light of these
The application against second and third respondents. considerations, he submitted, the applicants have not suc-
ceeded in shewing that they have the necessary locus
I turn now to consider the applicants’ prayer for an order standi to bring the application.
interdicting second and third respondents from making
a decision on the rezoning application before the finali- Mr De Villiers submitted that Mr Helberg’s arguments
sation of the board’s investigation. regarding locus standi were refuted by the provisions of
s 7(4)(b) of the Constitution, which evinced a clear in-
(4) Locus standi tention to put an end to the previous restrictive approach
to locus standi adopted by the courts. He submitted fur-
Here, as appears from the summary I gave of the ques- ther that, apart from the fact that Mr Van Huyssteen in
tions to be considered in this case, the first question to his personal capacity is before the Court as fourth appli-
which I must try to find the answer is whether the appli- cant, a purposive approach to interpreting s 7(4)(b) would
cants have locus standi to ask for the interdict sought lead to the conclusion that trustees suing on behalf of
against second and third respondents. the trust would clearly be regarded as falling within the
manning of s 7(4)(b). I agree that the ‘own interest’ re-
The objection of a lack of locus standi , which was not ferred to in s 7(4)(b)(i) is wide enough to cover an inter-
taken by second and third respondents, is taken by sixth est as trustee. As Professor J R L Milton, Professor M G
71
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Cowling, Dr P G van der Leeuw, Mr M Francis, Mr P G ond and third respondents.
Schwikkard and Professor J R Lund point out in the chap-
ter on ‘Procedural rights’ in Van Wyk et al (eds) Rights (5) Applicants’ right:
and Constitutionalism - The New South African Order at
421, the Constitution had adopted and entrenched a very The next question to be considered is whether the appli-
liberalised notion of legal standing. This ‘more gener- cants have the right in the circumstances of this case to
ous approach to legal standing’ op cit at 422) is applica- the interdict sought.
ble, as s 7 (4) makes clear, in all cases where an infringe-
ment of or a threat to any right entrenched in chap 3 of I have already said that the applicants have the right to
the Constitution is alleged. Applicants rely on a threat- procedurally fair administrative action in this case. The
ened infringement of s 24 (b) of the Constitution which question to be considered is whether it would be
gives them an entrenched right to procedurally fair ad- procedurally unfair for them if second and third respond-
ministrative action where any of their rights or legiti- ents were to decide the rezoning application before the
mate expectations are affected or threatened. First, sec- board has finalised its investigation. It is accordingly
ond and third applicants’ rights as trustees in respect of necessary to consider what would amount to procedural
the trust property in my view will be affected or threat- fairness or unfairness in the circumstances of this case.
ened if second and third respondents decide the rezon-
ing application in favour of sixth and seventh respond- Mr Van Schalkwyk contended that the applicants have no
ents before the finalisation of the board’s investigation rights to the order sought by them on this part of the case
and if such action on their part amounts to procedurally because there is no provision in the ordinance which re-
unfair administrative action (a question which I shall quires that the findings and/or recommendations of a
consider later in this judgment). I say that their rights in board of investigation appointed in terms of s 15(1) of
respect of the trust property, which is right opposite the Act 73 of 1989 (where one has been appointed) must be
lagoon, must of necessity be diminished by industrial taken into account before a rezoning decision is made.
activity which pollutes or otherwise detrimentally affects He also formulated his submission in this regard as fol-
the natural beauty and enjoyment associated with being lows:
near to the lagoon. One of the purposes for which the
trust property may well be used is for the erection of a ‘There is nothing which legally requires the function-
holiday home and it clearly has value as the potential ary charged with a rezoning decision to take into ac-
site of a holiday home. A court can take judicial notice count the findings and/or recommendations of a board
of the fact that the sites for holiday homes will be more of investigation which has been appointed under other
valuable if they are in close proximity of beautiful un- legislation for other purposes.’
spoilt natural areas and that they will be much less valu-
able if such areas are polluted or otherwise detrimen- It may be that when the ordinance was passed there was
tally affected. Whether or not the trust property is in the nothing which compelled a functionary charged with
area earmarked in the Vredenburg-Saldanha structure making a rezoning decision to take into account find-
plan for heavy industry takes the matter no further as it ings or recommendations made by boards appointed un-
is clear form s 5(3) of the ordinance that a structure plan der other legislation. But since the ordinance was passed
does /not confer or take away any right in respect of land’, in 1985 two important things have happened which will
nor does it matter that the papers do not indicate how far impinge directly on rezoning applications; the first was
the trust property is from the proposed steel mill devel- the enactment and coming into operation of the Act 73
opment. What they do indicate is that if the views of of 1989 and the publication of the general policy deter-
those experts who are opposed to the development are mined in terms of s 2 thereof and the second was the
right the lagoon will be adversely affected: as I have said enactment and coming into operation of the new Consti-
if the lagoon is adversely affected it is clear that the trust tution. The direct linked between a rezoning application
property, which is right opposite it, will also be adversely under the ordinance and Act 73 of 1989 is to be found in
affected. s 3 of Act 73 of 1989, which has been quoted above and
which clearly obliges second and third respondents to
It is also clear that Mr Van Huyssteen in his person ca- exercise the powers conferred by the ordinance (which
pacity, as fourth applicant, will be affected in his inter- undoubtedly may have an influence on the environment)
ests as a beneficiary entitled to use and occupy the trust in accordance with the policy determined under s 2 of
property and the benefits associated with such use and the Act. That policy (the material provisions of which
occupation which clearly include those flowing from its have been quoted above) requires
proximity to the lagoon.
‘all responsible government institutions (which phrase
I am accordingly satisfied that the applicants have locus clearly includes second and third respondents) to
standi to ask for the order sought by them against sec- apply appropriate measures based on sound scien-
72
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
tific knowledge to ensure the protection of designated ‘There are, in my view, no words which are of uni-
ecologically sensitive and unique areas, for example versal application to every kind of inquiry and every
... wetlands ....’. kind of domestic tribunal. The requirements of natu-
ral justice must depend on the circumstances of the
The wetlands in question have been designated for pro- case, the nature of the inquiry, the rules under which
tection under an international convention to which South the tribunal is acting, the subject-matter that is be-
Africa is a party. ing dealt with, and so forth.’
That there is a direct link between s 24(b) of the Consti- (This dictum has been quoted with approval from time
tution and the duties of a functionary deciding a rezon- to time in South African decisions: see for example
ing application under the ordinance is indisputable, be- Turner v Jockey Club of South Africa 1974 (3) SA 633
cause s 24(b) of the Constitution applies to all adminis- (A) at 646E.)
trative action whereby any person’s rights or legitimate
expectations are affected or threatened. A decision to One of the statements cited by Craig (loc cit) for the
rezone the property on which sixth and seventh respond- view that natural justice is a manifestation of the broader
ents propose to erect a steel mill to allow the erection concept of fairness is the well-known dictum of Lord
and operation thereof will undoubtedly affect applicants’ Morris of Borth-y-Gest in Wiseman v Borneman [1971]
right to the trust property if the effect of the operation of AC 297 (HL) ([1969] 3 All ER 275) at 308H-309B (AC)
the proposed steel mill will be to pollute or otherwise and 278C-E (All ER) which reads as follows:
detrimentally affect the lagoon, for the reasons I have
already given. ‘My Lords, that the competition of natural justice
should at all stages guide those who discharge judi-
It must follow that the applicants have the right to proce- cial functions is not merely an acceptable but is an
dural fairness in respect of the rezoning decision. essential part of the philosophy of the law. We often
speak of the rules of natural justice. But there is noth-
Mr. Helberg contended that s 24(b) merely codifies the ing rigid or mechanical about them. What they com-
common law relating to natural justice and that, as it is prehend has been analysed and described in many
not suggested that second and third respondents will deny authorities. But any analysis must bring into relief
the applicants a hearing (and thuys fail to comply with rather their spirit and their inspiration than any pre-
the audi alteram partem rule) or be biased (and thus fail cision of definition or precision as to application. We
to comply with the nemo iudex in sua causa rule), there do not search for prescriptions which will lay down
can be no breach of natural justice and thus no proce- exactly what must, in various divergent situations, be
dural unfairness in refusing to wait until after the board done. The principles and procedures are to be ap-
has completed its investigation. plied which, in any particular situation or set of cir-
cumstances, are right and just and fair. natural jus-
I cannot agree with this submission. tice, it has been said, it only “fair play in action”. Nor
do we wait for directions from Parliament. The com-
Apart from the fact that I do not agree that the rules of mon law has abundant riches; there may we find what
natural justice in our law are limited to the audi alteram Byles J called “the justice of the common law” (Cooper
partem and the nemo iudex in sua causa rules, I do not v Wandsworth Board of Works (19863) 16 CBNS 180
think that one can regard s 24(b) as codifying the exist- at 194).’
ing law and thus read down, as it were, the wide lan-
guage of the paragraph, unless the existing law was al- Whatever the position may be in English law and what-
ready so wide and flexible that it was covered by the ever the best formulation of the English rules on the topic
concept of procedural fairness. may be, I am of the view that in our law the so-called
audi alteram partem and nemo iudex in sua causa rules
It is not entirely clear in England whether natural justice are but part of what the Appelate Division described as
is ‘but a manifestation of a broader concept of fairness’ the ‘fundamental principles of fairness’ in the leading
or whether ‘natural justice’ applies to ‘judicial decisions’ case of Marlin v Durban Turf Club and Others 1942 AD
and ‘a duty to act fairly’ exists in ‘administrative or ex- 112 at 126, where Tindall JA said:
ecutive determinations’: see Craig Administrative Law
2nd ed 207. Whichever is the correct formulation, eve- ‘The expression in question (natural justice), when
ryone appears to accept the correctness of Tucker LJ’s applied to the procedure of tribunals such as those
dictum in Russell v Duke of Norfolk and Others[1949] 1 justice mentioned, seems to me merely a compendi-
All ER 109 (CA) at 118D-E, which is in the following ous (but somewhat obscure) way of saying that such
terms: tribunals must observe certain fundamental princi-
ples of fairness which underlie our system of law as
73
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
well as the English law. Some of these principles were 579b (SACR))), where Dickson J, as he then was, when
stated, in relation to tribunals created by statute, by discussing how the meaning of a right or freedom guar-
Innes CJ in Dabner v South African Railways 1920 anteed under the Canadian Charter of Rights and
AD 583 in these terms: “Certain elementary princi- Freedoms is to be ascertained, said:
ples, speaking generally, they must observe; they must
hear the parties concerned; those parties must have ‘The interpretation should be ... a generous rather
due and proper opportunity of producing their evi- than a legalistic one, aimed at fulfilling the purpose
dence and stating their contentions and the statutory of a guarantee and securing for individuals the full
duties must be honestly and impartially discharged.” benefit of the Charter’s protection.’
It will be noted that the learned Chief Justice avoided
using the term “natural justice”. And in Barlin v Li- In my view the interpretation contended for by Mr
censing Court for the Cape 1924 AD 472 the phrase Helberg is legalistic, and it does not secure for individu-
used is: “have the fundamental principles of justice als the full measure of the fundamental right entrenched
been violated?”’ in s 24(b).
It follows from what I have said that even if s 24(b) is to (6) Infringement or threatened infringement of appli-
be regarded as merely codifying the previous law on the cants’ rights;
point, a party entitled to procedural fairness under the
paragraph is entitled, in appropriate case, to more than The next aspect to be considered is whether it would be
just the application of the audi alteram partem and the unfair for second and third respondents not to wait the
nemo iudex in sua causa rules. What he is entitled to is, finalisation of the investigation by the board appointed
in my view, what Lord Morris of Borth-y-Gest described by first respondent before making a decision on the re-
as ‘the principle and procedures ... which, in (the) par- zoning application. Mr Van Schalkwyk submitted that
ticular situation or set of circumstances, are right and this Court could only make a finding on the point if it
just and fair’. were clear that the investigation and consideration of the
rezoning application by the Provincial Administration
If I am wrong in saying that the test formulated by Lord would be inadequate and in some way inferior to the in-
Morris of Borth-y-Gest is in accordance with our previ- vestigation by the board. He referred to what is said in
ous law, then I am satisfied that it is the correct test un- Mr Theunissen’s affidavit regarding the procedure being
der s 24(b). I say this because I do not think that the followed by the Provincial Administration in this regard
expression ‘procedurally fair administrative action’ is a and submitted that there was nothing to show that this
term of art which, when used in a statute, particularly in procedure would not be as good, if not better, than the
the Constitution, leads to what I have called a reading investigation by the board.
down of the statutory language. Section 35(1) and (3) of
the Constitution enjoin a court interpreting chap 3 of the I do not agree. It is clear that there is a vast difference of
Constitution to promote ‘the values which underlie an opinion between the various experts who have com-
open and democratic society based on freedom and equal- mented upon the desirability, from an environmental
ity’ and in interpreting any law and in the application view, of allowing the development to proceed. Where
and development of the common law to ‘have due re- such differences exist and where they appear, as here, to
gard to the spirit, purport and objects of (the) chapter’. be irreconcilable, then experience shows that there is no
better way of getting at the truth than through a hearing
The correct interpretation of the meaning of ‘the right to where the witnesses who hold and espouse opposing
procedurally fair administrative action’ entrenched in s views can testify under oath and in public and where
24(b) of the Constitution must be a ‘generous’ one, they are subject to interrogation. While Wigmore’s state-
‘avoiding what has been called “the austerity of tabu- ment (Wigmore Evidence vol 5 at 1367 (Chadbourn rev,
lated legalism”, suitable to give to individuals the full 1974)) that cross-examination is ‘the greatest legal en-
measure of the fundamental rights ... referred to’, to adopt gine ever invented for the discovery of the truth’ and Lord
the language of Lord Wilberforce in Minister of Home Macmillan’s assertion (quoted by Richard du Cann QC
Affairs and Another v Collins MacDonald Fisher and in The Art of the Advocate (1985 ed) at 95-6) that ‘prop-
Another [(1980] AC 319 (PC) at 328-9 ([1979] 3 All ER erly used, cross-examination in an English court consti-
21 at 25h), an approach which has been approved by the tuted the finest method of eliciting and establishing truth
Constitutional Court in S v Zuma and Others 1995 (2) yet devised’ may contain elements of exaggeration, it is
SA 642 (CC) at 651 A-D (1995 (1) SACR 568 at 578c- generally recognised that a skilful interrogator can ex-
g) and S v Makwanyane and Another (case CCT/3/94 pose the inadequacies and fallacies in erroneous evidence
delivered on 6 June 1995 (per Chaskalson P at para [10] in a manner which can seldom if ever be replicated by
of the unreported judgement)* see also R v Big M Drug any other method for establishing the truth. Furthermore,
Mart Ltd (1985) 18 DLR (4th) 321 at 395-6 (also ap- the fact that the board will hold its hearings in public is
proved in S v Zuma (supra at 651E-H (SA) and 578h- another factor calculated to improve the quality of the
74
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
testimony given because, as in the case of judicial pro- terms of s 21(1) of Act 73 of 1989, as an activity which
ceedings, publicity makes for trustworthiness and com- in his opinion may have a substantial detrimental effect
pleteness of testimony: see, for example, Wigmore Evi- on the environment and refuses to authorise sixth and
dence vol 6 at 1834 (Chadbourn rev, 1976), cited with seventh respondents to operate the mill, unless in itself
approval by Ackermann J in S v Leepile and Others (1) it constitutes a hazard to the environment, will not be
1986 (2) SA 333 (W) at 338B-339J. able to be removed. Sixth and seventh respondents will
also, in these circumstances, be entitled to compensa-
In addition to the very considerable advantages of testi- tion in terms of s 34(1) of the Act for the actual loss
mony on oath and interrogation and publicity must be suffered by them in consequence of the limitation placed
added the advantages of being able to subpoena any per- by first respondent on the purposes for which the steel
son who in its opinion may give material information mill site may be used. At the moment the site may not
and/or who may produce any book, document or thing be used for the operation of a steel mill. If the rezoning
which may have a bearing on the subject of the investi- application is granted, sixth and seventh respondents will
gation to give evidence and be interrogated and/or to pro- acquire the right so to use it and a right to compensation
duce the book, document or thing. if first respondent subsequently takes the right so as to
use the land away or imposes restrictions which cause
None of these advantages is available in the Provincial sixth and seventh respondents loss. As a result a right to
Administration consideration of the application. The compensation may arise, payable out of public revenue,
advantages enjoyed by the board render its investigation for a loss which in its turn can only be suffered if second
markedly superior to what may be called administrative and third respondents proceed to consider the rezoning
investigation and make the expressed attitude of second application before the board has finalised its investiga-
and third respondents that they wish to be able to decide tion. The aspect to which I have just referred is a further
this application, beset as it is with basic and seemingly factor relevant in deciding whether what second and third
irreconcilable differences of opinion between the experts, respondents want to do will be procedurally unfair, be-
difficult to understand. Wilfully to ignore the advan- cause respondent may well be deterred from acting un-
tages which must flow from what will, in my judgment, der s 21 of the Act and refuse a permit under s 22 thereof
inevitably be a better investigation far more likely to ar- if, as a result of the actions of second and third respond-
rive at an answer based, as the general environmental ents, sixth and seventh respondents would have a claim
policy determined in terms of s 2(1) of Act 73 of 1989 to what might well amount to massive compensation.
requires, on ‘sound scientific knowledge’ is to adopt a
procedure which is unfair to all those persons who may The fact to which I have just referred (the possibility of
be affected by the decision made. sixth and seventh respondents acquiring a claim, or an
enhanced claim, to compensation after rezoning and fol-
I wish to emphasize what it is that I am saying in this lowed by s 21 identification) is relevant also in regard to
case and what it is that I am not saying. I am not saying the question as to whether I should exercise my discre-
that in every opposed rezoning application a public hear- tion (if I have one) in favour of the applicants and I shall
ing must be held where the protagonists of the various return to it when I consider that question.
views and other persons able to give material informa-
tion can be interrogated and where the production of I am accordingly satisfied that applicants have shewn
documents and other things with a bearing on the matter that an infringement of their right to procedurally fair
can be compelled. What I am saying is that, in the spe- administrative action is threatened.
cial circumstances of this case, where such an enquiry is
going to be held and the whole matter thoroughly gone Other requirements for an interdict
into by a board which will enjoy substantial advantages
over those engaged on a departmental investigation, then I now proceed to consider whether the applicants have
there will be procedural unfairness if the departmental established the other requirements for an interdict: that
investigation is not held in abeyance until the board has they will suffer irreparable harm and have no alternative
finalised its investigation. remedy unless the order sought is granted, that the Court
should exercise its discretion in their favour and, on the
There is a further advantage which will flow from fol- assumption that the relief they seek is of an interim na-
lowing such a course. If the rezoning application is ture and that they have established their right prima facie
granted before the board’s investigation is finalised and that the balance of convenience is in their favour. I shall
the board thereafter comes to the conclusion that the assume, without deciding, that an applicant for an order
development should not be allowed to proceed and rec- prohibiting an infringement of one of his constitutional
ommends accordingly, then, even if first respondent ac- rights has to shew the other essentials for an interdict,
cepts the board’s recommendation and identifies the op- although it is not self-evident that this is so. (It may be
eration of sixth and seventh respondent’s steel mill, in that factors of the kind I am now to consider would in
any event have to be considered, to some extent at least,
75
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
in deciding the question of unfairness). whether I should exercise my discretion (on the assump-
tion that I have a discretion in a case where constitu-
7. No irreparable harm and no alternative remedy; tional relief is sought), I propose to set out my views on
this aspect of the case.
Mr. Van Schalkwyk contended that the applicants are not
entitled to the order they seek because they have not If the order sought is not granted and a decision is given
shewn that they will suffer irreparable harm and that they in favour of sixth and seventh respondents and the board
have no alternative remedy. reports later that the proposed development is undesir-
able and is likely to be detrimental to the environment,
He contends in this regard that if the rezoning decision first respondent will have a discretion, as I have said, as
is given in favour of sixth and seventh respondents and to whether he should act in terms of ss 21, 22 and 31A of
the applicants are of the view, after finalisation of the the Act. If he does so, the amounts expended by sixth
board’s investigation, that the rezoning decision is re- and seventh respondents will be wasted and compensa-
viewable the ‘harm’ can be repaired by means of review. tion will be payable to sixth and seventh respondents. It
The answer to that submission in my view is that a re- is by no means clear whether first respondent will in those
view is a discretionary remedy. If the proposed steel circumstances, where is presented with a potentially ex-
mill site is rezoned and a steel mill erected thereon, the pensive fait accompli, exercise his discretion against sixth
possibility exists that a reviewing Court will be reluctant and seventh respondents.
to make an order the effect of which will be the demoli-
tion of an expensive steel mill: cf Thompson and An- On the other hand, if the board’s investigation leads to a
other v Van Dyk and Another (CPD, case No 7417/93), finding that the proposed development cannot be regarded
an as yet unreported decision of this Court, delivered on as undesirable in that it will probably not detrimentally
9 December 1993, and the cases there cited. impact on the environment or that such impact can be
satisfactorily addressed by imposing conditions, then the
Mr Van Schalkwyk contended further that if the rezoning rezoning application will in all probability be granted
decision were given in favour of sixth and seventh re- and the applicants will have no reason to fear that their
spondents and the board were to report against the de- rights will be adversely affected. Mr Helberg, however,
velopment, then first respondent could act in terms of contended that the board’s investigation will take time:
the Act so as to stop the operation of the steel mill. Here he spoke of as long as two years and he referred to a
again the applicants will have no right to demand such statement made in the affidavit filed on behalf of sixth
action. First respondent has a discretion under the sec- and seventh respondents that a delay in giving the deci-
tion and it is by no means clear that he will exercise it sion on the rezoning application may lead to a reconsid-
against sixth and seventh respondents. eration of the whole project.
It is also clear that a claim for damages cannot be an Mr De Villiers had a twofold answer to this contention.
adequate alternative remedy because it will be extremely Firstly, he said, it is clearly the wish of first respondent
difficult for applicants to quantify. that the investigation should be disposed of as speedily
as is reasonably possible. Secondly, he said, this Court
I am accordingly satisfied that the applicants have shewn can deal with this aspect by building into the order a
that they will suffer irreparable harm and have no alter- provision for second and third respondents to set the
native remedy. matter down for further hearing (after due notice to the
applicants) for further argument on this aspect if they
(8) Balance of convenience and discretion; are of the view that the investigation is taking too long.
In view of my finding that the applicants have a right to In my view, there is merit in both of Mr De Villiers’ sub-
procedurally fair administrative action in this matter and missions. It is clear from the provisions of s 15 of Act 73
that what second and third respondents propose to do of 1989 that the investigation does not take the form of a
amounts to an infringement or threatened infringement trial. the chairman, who is a retired Judge of great expe-
of that right, I am not sure that it is necessary for me to rience, will be in charge. He will be able to put a stop to
express an opinion on the question of the balance of con- anything amounting to an attempted filibuster on the part
venience in this matter but, inasmuch as it was argued of anyone appearing before the board. He will also be
and the question of the balance of convenience, or the aware of the first respondent’s desire for the investigation
‘balance of fairness’ as Fleming DJP called it in to be finalised as soon as reasonably possible and I have
Harnischfeger Corporation and Another v Appleton and no doubt will act accordingly. The order I propose to make
Another 1993 (4) SA 479 (W) at 491C, a case to which incorporates Mr De Villiers’ suggestion regarding a pos-
Mr Helberg referred me, has relevance in regard to sible re-set down of the matter if it is believed that undue
time is elapsing (which suggestion was first contained in
76
VAN HUYSSTEEN & O THERS V M INISTER OF E NVIRONMENTAL A FFAIRS & T OURISM & O THERS
an open offer made by the applicants to second and third with reference to the site on which the development
respondents before the hearing). of a steel factory by sixth and seventh respondents
is envisaged, pending the finalisation of the investi-
In the circumstances I am satisfied that the balance of gation of the board appointed in terms of s 15(1) of
convenience, or fairness, favours the applicants and that Act 73 of 1989; provided that second and third re-
I should exercise my discretion in favour of the appli- spondents shall have the right to set the matter down
cants in respect of the relief sought by them against sec- for further argument (on 10 days’ notice to the ap-
ond and third respondents. plicants and to sixth and seventh respondents) on
the question as to whether the order made in this
Order paragraph should be uplifted on the ground that the
finalisation of the said board’s investigation is being
The order I make is the following: unduly delayed.
1. First, second and third applicants’ application for an 3. The second, third, sixth and seventh respondents are
order against first respondent calling upon him to ordered, jointly and severally, to pay the applicants’
appoint a board of investigation in terms of s 15(1) costs in respect of the application for the order con-
of Act 73 of 1989 to investigate sixth and seventh tained in para 2 above.
respondents’ proposed steel factory development at
Bredenburg-Saldanha and applicants’ application for 4. First respondent is ordered to pay the costs of first,
an order against first respondent to amend/or am- second and third applicants in relation to their claim
plify the terms of reference of the board of investi- for documentation to be made available to them.
gation appointed by him in terms of the said s 15(1)
are dismissed with costs, such costs to include those Applicants’ Attorneys: Cloete, Baker & Partners. First,
occasioned by the employment of two counsel. Second and Third Respondents’ Attorney: State Attorney.
Sixth and Seventh Respondents’ Attorneys: Gildenhuys,
2. Second and third respondents are ordered to hold in Van der Merwe Inc, Pretoria.
abeyance the decision on the rezoning application
77
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 6153 OF 1992
MAINA KAMANDA & ANOTHER, PLAINTIFFS
v.
NAIROBI CITY COUNCIL & ANOTHER, DEFENDANTS
RULING by instituting the action. But in considering this matter
of a mixed question of law and fact, I have to take into
The Applicants are two Nairobi residents and rate pay- consideration its surrounding circumstances. They are
ers. They have instituted the present action against the simply this that the Applicants say among other things,
1st Respondent, the Nairobi City Council and the 2nd that as rate payers, they object to the 1st Respondent con-
Respondent, the erstwhile Chairman of the Nairobi City tinuing to extend its facilities and perquisites to the 2nd
Commission inter alia to restrain the 1st Respondent from Respondent after he had ceased to be the Chairman of
permitting the 2nd Respondent to continue to enjoy cer- the Nairobi City Commission and that this amounted to
tain facilities and perquisites which he had enjoyed when a misuse of the funds of the 1st Respondent and that as
he had been the Chairman of the Nairobi City Commis- ratepayers, they had sufficient interest to bring the ac-
sion. These facilities and perquisites are the 1st Respond- tion. I think that it is now well settled that a ratepayer as
ent’s house LR No.330/492 Korosho Road (it had been opposed to a tax payer, has sufficient interest as such, to
described in the pleadings as LR No.330/493 Korosho challenge in court the action of a public body to whose
Road, but this was subsequently corrected to read LR expenses he contributes. This was eloquently set forth in
330/492 Korosho Road), its office known as the May- the following passage from the speech of Lord Diplock
or’s Parlour and telephones therein, and its Mercedez in the House of Lords case of IRC v National Federation
Benz motor car registration number KAA 807S. of Self-Employed and Small Business Ltd (1982) AC
617 at 740 et seq:
Upon the filing of the suit, the Applicants applied for
and obtained ex-parte, a temporary injunction which did “For my part I need only refer to Reg. v. Greater Lon-
not apply to the 1st Respondent’s Korosho Road house don Council, Ex parte Blackburn (1976) 1. W.L.R. 550.
because at that time the correction in its description had In that case Mr. Blackburn who lived in London with
not yet been made, but which did apply to all the other his wife who was a ratepayer, applied successfully for
an order of prohibition against the council to stop them
facilities and perquisites of the 1st Respondent already
acting in breach of their statutory duty to prevent the
described. At the beginning of the subsequent, inter partes exhibition or pornographic films within their adminis-
hearing of the related application, a preliminary objec- trative area. Mrs. Blackburn was also a party to the
tion was raised on behalf of the 2nd Respondent that the application. Lord Denning M.R. and Stephenson L.J.
Applicants had no locus standi to bring the action they were of opinion that both Mr. and Mrs. Blackburn had
had brought. This same ground was among the grounds locus standi to make the application: Mr. Blackburn
of objection filed on behalf of the 1st Defendant. I de- because he lived within the administrative area of the
cided it would be convenient and proper that this ground council and had children who might be harmed by see-
should be argued first, for if it succeeded, that would be ing pornographic films and Mrs. Blackburn not only
as a parent but also on the additional ground that she
the end of the that matter.
was a ratepayer. Bridge L.J. relied only on Mrs.
Blackburn’s status as a ratepayer; a class of persons to
The arguments put forward in support of the objection whom for historical reasons the court of King’s Bench
were that the Applicants had no locus standi since they afforded generous access to control ultra vires activi-
had not shown that they had sufficient interest in seek- ties of the public bodies to whose expenses they con-
ing the relief they were seeking; that since what they tributed. But now that local government franchise is
claimed was a matter in the realm of a public wrong, ex not limited to ratepayers, this distinction between the
relatione, they required the permission of the Attorney two applicants strikes me as carrying technicality to
General to being the action which they had not got; that the limits of absurdity having regard to the subject mat-
ter of the application in the Blackburn case. I agree in
the Applicants have improperly brought the action in a
substance with what Lord Denning M.R. said at P.559,
representative capacity; and that the Applicants are mere though in language more eloquent than it would be
busy bodies who seek to abuse the process of the court my normal style to use:
78
MAINA KAMANDA V N AIROBI CITY C OUNCIL
‘I regard it as a matter of high constitutional principle These actions fall under as 61 and 62 of the Civil Pro-
that if there is good ground for supposing that a gov- cedure Act and they are limited to public nuisance and
ernment department or a public authority is transgress- public charity. The Attorney General is the principal
ing the law, or is about to transgress it, in a way which aggrieved party but 2 or more private persons, having
offends or injures thousands of Her Majesty’s subjects, interest in the given action, and with the Attorney Gen-
then any one of those offended or injured can draw it eral’s written consent, can sue”.
to the attention of the courts of law and seek to have
the law enforced, and courts in their discretion can grant That a relator action was required in the specific action
whatever remedy is appropriate’. (The italics in this concerning a public charity as provided for by the Civil
quotation are my own)”. Procedure Act, was reiterated in the case of Wafk Com-
missioners v Mohamed bin Umeya bin Abdulmajid bin
Lord Diplock concluded his speech with the following Mwijabu and Ali Mohamed Ali Bashir (1984) 2 KAR.
penultimate paragraph with which I respectfully also Hancox JA as he then was had this to say:
agree and adopt, in my consideration of the matter now
before me: “One other final matter remains. The Respondents did
not initially obtain the Attorney General’s consent re-
“It would, in my view, be a grave lacuna in our system quired under S.62 of the Civil Procedure Act. It was
of public law if a pressure group, like the federation, given for the institution of this suit by the then Attor-
or even a single public-spirited taxpayer, were pre- ney General on 4th June, 1977".
vented by outdated technical rules of locus standi from But even if the present action can be said to be a relator
bringing the matter to the attention of the court to vin-
action, and I do not think so, I will not prevent the Appli-
dicate the rule of law and get the unlawful conduct
stopped. The Attorney General, although he occasion- cants from bringing to the notice of this court the im-
ally applies for prerogative orders against public au- proper conduct of the 1st Respondent. I have already re-
thorities that do not form part of central government, ferred to the penultimate paragraph of Lord Diplock
in practice never does so against government depart- speech in the National Federation case supra. Nearer
ments. It is not, in my view, a sufficient answer to say home, Hancox JA as he then was, stated in Njau v Nai-
that judicial review of the actions of officers or depart- robi City Council (1982-1988) 1 KAR 229 at 239 that:
ments of central government is unnecessary because
they are accountable to Parliament for the way in which “Even though that became a relator action, the tenor
they carry out their functions. They are accountable to of Lord Denning’s remarks, and that of Lord Diplock
Parliament for what they do so far as regards efficiency in the National Federation case, show that the tendency
and policy, and of that Parliament is the only judge; is not to prevent people bringing to the attention of the
they are responsible to a court of justice for the law- courts unlawful conduct by public authorities with a
fulness of what they do, and of that the court is the view to redress or getting the unlawful conduct
only judge”. stopped”.
The matter that the Applicants have raised is not a mis- As to the objection that the Applicants had followed the
guided or trivial complaint of an administrative error; it wrong procedure in bringing a representative suit, that
is one that involve a serious allegation of misapplication has only to be stated to be rejected. It is true that in the
of public funds by a local authority. plaint and the affidavits in support of the injunction ap-
plication, it is averred that the 2nd Respondents’ use of
As stated in Constitutional and Administrative Law, ECS the facilities and perquisites of the 1st Respondent would
Wade and AW Bradley, (10th Edn, 1985 pp660 - 661): give him an unfair advantage over the Applicant and other
persons who are like the 2nd Respondent, aspirants in
“An injunction may be claimed against a public au- the forthcoming civic elections, but this passing remark
thority or official, to restrain unlawful acts which are does not make the present suit a representative one. And
threatened or are being threatened, for example to re- though I do not think that the political rivalry between
strain unlawful interference with private rights or to the Applicants and the 2nd Respondent gives the former
restrain ultra vires action such as improper expendi-
any cause of action and locus standi, the Applicants as I
ture of local funds”.
have already stated, have as rate payers, sufficient inter-
This brings me to the issue whether the present suit can be est in bringing to the attention of this court any alleged
instituted as a relator action without leave of the Attorney unlawful act being committed by the 1st Respondent and
General. In the recent case of Oginga Odinga and 3 others to seek its stoppage.
v Zachariah Richard Chesoni and the Attorney General,
Misc. Civil Application No. 602 of 1992, the three Judge The issue of locus standi is not a matter to be considered
Constitutional Bench of the High Court, when dealing with in the abstract and apart from the surrounding circum-
the question of relator actions had this to say: stances which I have already alluded to, there are other
relevant matters revealed in the affidavits filed in sup-
“When it comes to the public interest, where a party port of and in opposition to the injunction application. It
suffers generally as any other, then relator actions lie. seems to me that there is more than meets the eye con-
79
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
cerning the circumstances under which the 2nd Respond- In the result and taking into account all the authorities
ent because a tenant of the 1st Respondent. Secondly cited to me in this matter, I rule that the Applicants have
how did house No. LR 330/493 which had been repaired locus standi to bring the present suit.
and lavishly furnished as the official residence of the
Mayor of the 1st Respondent pass into the hands of an- Dated and delivered this 8th day of December, 1992.
other person.
A. M. AKIWUMI
JUDGE.
80
VERSTAPPEN V PORT EDWARD T OWN BOARD & O THERS
V E R S TA P P E N
v.
PORT EDWARD TOWN BOARD AND OTHERS
DURBAN AND COAST LOCAL DIVISION
Magid J
1993 September 29; November 24 Case how interdict would affect immediate parties to litiga-
No. 4645/93 tion—Where general public affected, convenience of
public to be taken into account.
Environmental law—Waste disposal—Operating dis- The requirement, enacted in s 20(1) of the Environment
posal site without a permit as required Conservation Act 73 of 1989, of a permit issued by the
Minister of Water Affairs to ‘establish, provide or oper-
by s 20(1) of Environment Conservation Act 73 of 1989— ate’ a waste disposal site is plainly couched in the most
Minister not having prescribed form for application for pere]mptory language. The clear intention of the Legis-
permit and information required therein as contemplated lature as expressed in s 20(1) of the Act cannot be over-
by s 20(2)—Clear intention of Legislature that permit ridden by the Minister’s failure, whether inadvertent or
required to ‘establish, provide or operate’ a waste dis- intentional, to make the appropriate regulations as in-
posal site expressed in s 20(1) not to be overridden by tended in s 20(2) providing for a form of application for
Minister’s failure to make appropriate regulations—Op- such permit and the prescribed information required.
erating disposal site without a permit unlawful even
though regulations providing for application for permit The Court accordingly held that the Minister’s failure to
not made. promulgate the regulations
Environmental law—Waste disposal—Operating dis- foreshadowed in s 20(2) of the Act did not render lawful
posal site without a permit as required the conduct of the first respondent local authority in op-
erating the waste disposal site (which the applicant sought
by s 20(1) of Environment Conservation Act 73 of 1989— to interdict) without a permit in terms of s 20(1) of the
Locus standi of person challenging unlawful operating Act.
of such site—Environment Conservation Act intended
to operate in interests of public at large—Party seeking It is clear from the language of the Environment Conser-
to interdict local authority from unlawfully operating such vation Act 73 of 1989 that the
site required to show that contravention of Act has caused
or is likely to cause him/her some special damage. Legislature intended the provisions of the Act to operate
in the interests of the public at large. That being the case,
Environmental law—Waste disposal—Operating dis- an applicant seeking an interdict against the unlawful
posal site without a permit as required by s 20(1) of En- operation of a waste disposal site without a permit is-
vironment Conservation Act 73 of 1989— sued in terms of s 20(1) of the Act is required to show
that the contravention of the Act by the respondent has
Locus standi of ratepayer challenging unlawful opera- caused or was likely to cause him/her some special dam-
tion of such site by local authority—Mere fact that local age.
authority spending some municipal funds in operating
such site not affording party locus standi to interdict such The Court held on the facts that the applicant had not
illegality where it is not established that local authori- shown that she had suffered any special damage at all.
ty’s manner of operating site more expensive than alter-
native methods. The applicant also sought to establish her locus standi in
judicio to apply for an interdict restraining the first re-
Interdict—Interim interdict—Requirements—Balance of spondent local authority from committing the illegality
convenience—Such not restricted to of operating the waste disposal site without the afore-
81
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
mentioned permit on the basis that she was a ratepayer as ‘extract industry’.
of the first respondent and that in several reported cases
the Courts had afforded ratepayers the right to interdict In about 1985 the respondent started using the quarry
local authorities from dealing with their funds or prop- area as a site for the disposal of waste. For the past eight
erty contrary to law. The Court held that it did not con- years the applicant has sought the assistance of the re-
sider that the mere fact that some municipal funds were spondent, the Department of Water Affairs, the Depart-
obviously spent in managing and operating the waste dis- ment of National Health and virtually every other au-
posal site in question could conceivably afford the ap- thority she could appeal to to cause the respondent to
plicant locus standi to interdict what she regarded as an cease using the quarry site for waste disposal purposes.
illegality. The Court held that it had not been established
on the papers that the first respondent’s manner of oper- It is unnecessary for present purposes to record the history
ating of the waste disposal site was more expensive than of all those efforts. Suffice it to say that until
any of the various methods suggested by the applicant. approximately April 1993 the respondent expressed an
intention to seek an alternative site for the disposal of
The manner in which the grant or refusal of an interim waste emanating from its local authority area. The
interdict would affect the immediate parties to the litiga- applicant then came to the conclusion that the respondent
tion is not the only matter relevant to a determination of had abandoned that intention and accordingly launched
the balance of convenience, which is relevant to the ex- an application, which she alleged was urgent, for the issue
ercise by the Court of its discretion to grant or refuse an of a rule nisi calling upon the respondent and others
interdict. Where, as in the present case the wider general (though no relief was sought against them) to show cause
public is affected, the convenience of the public must be against the grant of the following relief:
taken into account in any assessment of the balance of
convenience. ‘(a) That the first respondent is hereby interdicted and
restrained from using or permitting the use by any
Application for an interim interdict in which certain ques- other person of lots 38 and 39 Banners Rest, Port
tions were argued in limine. The facts and the nature of Edward, for the purposes of the disposal of refuse,
the questions to be decided appear from the reasons for litter or any other waste material.
judgement.
(b) That the first respondent is directed to take all such
R J. Salmon for the applicant. steps as may reasonably be necessary to prevent the
use by any other person of the said lots for any of
G D Harpur for the first respondent. the purposes referred to in para (a) above.
No appearance for the second, third and fourth respond- (c) That the first respondent is directed within 14 days
ents. of the date of this order to remove from the said lots
any visible, exposed or offensive refuse, litter or other
Cur adv cult. waste material of any nature.
Postea (November 24). (d) That the first respondent is directed to pay the costs
of this application, save that in the event that any of
Magid J: The applicant is a co-owner of certain immov- the other respondents should oppose the application,
able properties which are situated within the area of ju- such respondents are ordered to pay the costs of the
risdiction of the first respondent local authority. I shall application jointly and severally with the first re-
refer to these properties (albeit only co-owned by the spondent.’
applicant) as ‘the applicant’s properties’. The other re-
spondents (the Minister of Water Affairs and Forestry, The applicant based her claim to relief on two grounds:
the Minister of National Health and Health Services: firstly, that the waste disposal site and the manner in
House of Assembly, and the Administrator of Natal) have which the respondent managed it constituted a nuisance;
been cited because of their interest in the matter, and as and secondly, in the alternative, that the respondent was
none of them is opposing the relief sought by the appli- operating its waste disposal site unlawfully.
cant, I shall hereinafter refer to the first respondent as
‘the respondent’. It is common cause that the dispute between the parties
as to whether the site or its management constitutes a
One of the applicant’s properties is adjacent to a worked- nuisance is incapable of resolution on the papers.
out quarry and the other is described as being ‘opposite’
thereto. Whatever the position may actually be, it is not When the matter came before me I was informed that
in issue that the applicant’s properties are fairly near the the parties had agreed that the following questions would
quarry whose town planning zone is for what is described be argued in limine, namely:
82
VERSTAPPEN V PORT EDWARD T OWN BOARD & O THERS
1. Does the applicant have locus standi in judicio to (2) Any application for a permit referred to in ss (1) shall
complain to the Court of the first respondent’s fail- be in the form and be accompanied by such infor-
ure to obtain a permit as required by the Environ- mation as the Minister may prescribe.’
ment Conservation Act 73 of 1989 (“the Act”)?
The requirement of a permit to ‘establish, provide or
2.(i) In view of the fact that no regulations dealing with operate’ a waste disposal site is plainly couched in the
waste management have been promulgated under the most peremptory of language. It is however, common
Act, is the first respondent presently obliged to ob- cause that the Minister has not prescribed the form and
tain a permit to operate a disposal site? information referred to in s 20(2) of the Act. The word
‘prescribe’ is defined in s 1 of the Act as meaning ‘pre-
(ii) Is the first respondent’s conduct unlawful in that it scribe by regulation or notice in the Gazette’.
is operating a disposal site without a permit?
Mr. Harpur, counsel for the respondent, submitted that
3. Has the applicant made out a case that she has suf- for this reason the prohibition contained in s 20(1) of the
fered an “injury actually committed” or that she rea- Act (and I quote from his heads of argument)
sonably apprehends that she will do so?
‘can only operate at the earliest from the date upon which
4. Does the applicant have no other satisfactory alter- the regulations have been promulgated and commence
native remedy?’ operation’.
During the course of argument I drew attention to the He relied for this submission on the judgment in S v Van
fact that the relief claimed in the notice of motion is der Horst and Others 1991 (1) SA 552 (C). Mr. Salmon,
couched in final form and accordingly enquired of Mr. on the other hand, relied on the judgment in S v Koopman
Salmon, who appeared for the applicant, whether interim 1991 (1) SA 474 (NC), which disagreed with Van der
or final relief was now being sought. He indicated that Horst’s case. Fortunately, it is unnecessary for me to
the applicant wanted the question of nuisance settled once express any view as to which of the views expressed in
and for all and that accordingly, if a I answered the ques- the two judgments is preferable; for, in my judgment,
tions posed above favourably to the applicant, she would neither of them is directly in point, and in any event the
merely be seeking interim relief pending the determina- clear intention of the Legislature as expressed in s 20(1)
tion of the question of nuisance by the hearing of oral of the Act cannot be overridden by the Minister’s fail-
evidence. In those circumstances Mr. Salmon accepted ure, whether inadvertent or intentional, to make the ap-
that the interim relief could not be cast in the broad terms propriate regulations.
set forth in the notice of motion, because it would be
necessary to qualify any order by reference to the admit- If some person desires to ‘establish, provide or operate’
ted failure of the respondent to obtain a permit in terms a waste disposal site he requires a permit from the Min-
of the Act to operate its waste disposal site. ister to do so. And if the Minister has failed to prescribe
the form on which such application is made or the infor-
The relevant provisions of the Act. mation which must accompany it, such person may make
an application to the Minister in whatever reasonable
I shall deal first with the issues set forth in para 2 of the form he desires, furnishing all such information as the
questions submitted for my decision. Subsections (1) and Minister might reasonably be likely to need. If the Min-
(2) of s 20 of the Act read as follows: ister were to decline to deal with the application because
it was not on the appropriate form or did not contain
(1) No person shall establish, provide or operate any sufficient information, I have no doubt at all that any
disposal site without a permit issued by the Minister Court would hold such a decision by the Minister to be
of Water Affairs and that Minister may:- so grossly unreasonable as to justify review. This is not
to say, of course, that the Minister would not be entitled
(a) issue a permit subject to such conditions as he may to require that such an applicant furnish such further in-
deem fit; formation as might reasonably be required to enable the
Minister properly to assess the merits of the application.
(b) alter or cancel any permit or condition in a permit;
But Mr. Harpur’s argument that the failure on the part of
(c) refuse to issue a permit: the Minister to promulgate the regulations foreshadowed
in s 20(2) of the Act renders lawful the conduct of the
Provided that such Minister may exempt any person or respondent in operating the site without a permit in terms
category of persons from obtaining a permit, subject to of s 20(1) of the Act is without any merit at all.
such conditions as he may deem fit.
83
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
I accordingly answer in the affirmative both questions band and myself, the proximity of a waste disposal
contained in para 2 of the issues I was asked to deter- site to lots 40 and 42 has had the effect of devaluing
mine. those properties. The first respondent has admitted
this inasmuch as it has on two occasions agreed to
The applicant’s locus standi. reduce the municipal rates paid by myself.
Mr. Salmon argued that the applicant had locus standi to 33. In my humble submission, it stands to reason that
challenge the respondent’s operation of the waste dis- the market value of a property adjacent to a waste
posal site without the necessary permit on one or other disposal site will not be as high as that of a property
or both of the following grounds, namely that: with a beautiful view of a pristine valley. I together
with my co-owners have therefore suffered irrepa-
(a) she is suffering damage by reason of the operation rable harm in the depreciation in the value of our
of the site without the appropriate permit (Patz v property and I reasonably anticipate that we will con-
Greene & Co 1907 TS 427 tinue to suffer such harm for as long as the first re-
spondent is allowed to continue with its unlawful
(b) as a ratepayer of the respondents’ local authority area conduct. In this connection, I wish to emphasise that,
she is entitled to prevent an illegality being commit- in spite of the undertakings and allegations of repre-
ted by the respondent (Jacobs en ‘n Ander v Waks en sentatives of the first and second respondents, the
Andere 1992 (1) SA 521 (A)). condition of the dump on lots 38 and 39 Banners
Rest remains appalling.’
In order to determine whether a member of the public
has locus standi to prevent the commission of an act pro- It is unnecessary to set out the replies to these allega-
hibited by statute, the first enquiry is whether the Legis- tions but it is plain that they are substantially in dispute.
lature prohibited the doing of the act in the interests of I am doubtful whether it can be said that the applicant
any particular person or class of persons or whether it has established on the papers that she has suffered any
was merely prohibited in the general public interest. If special damage at all. There is in my judgment inadequate
the former, any person who belongs to the class of per- evidence to enable me to determine on the papers that
sons in whose interests the doing of the act was prohib- the value of her property has been diminished in any way.
ited may interdict the act without proof of any special Certainly, without expert evidence in that regard, I would
damage. If not, the applicant must prove that he has suf- not be prepared to hold that a property’s value is dimin-
fered or will suffer such special damage as result of the ished by reason of its proximity to a waste disposal site
doing of the act. These principles are clearly set forth, rather than a disused quarry in the same position. And
inter alia, in Patz v Greene & Co (supra); Roodepoort- the applicant does not make the case that her health has
Maraisburg Town Council v Eastern Properties (Pty) Ltd been permanently impaired by the proximity of the waste
1933 AD 87 and the Jacobs case (supra). disposal site. Indeed, she merely ‘suspects’ that her ill-
health is attributable thereto.
I am satisfied that there is no basis for holding that the
applicant belongs to a special class of persons in whose The second basis on which the applicant claims to be
interests the Act was passed, for I have no doubt at all entitled to interdict the respondent from committing the
that the Legislature intended its provisions to operate in illegality of operating the waste disposal site without a
the interests of the public at large. This intention appears permit is that she is a ratepayer of the respondent. In
clearly from the language of the Act itself. That being several cases Courts have afforded ratepayers the right
the case, the applicant is required to show that the con- to interdict local authorities from dealing contrary to law
travention of the Act by the respondent has caused or is with their funds or property (Dormer v Town Council of
likely to cause her some special damage. Cape Town (1886) 4 SC 240; Cairncross v Oudtshoorn
Town Council (1897) 14 SC 272; Maberley v Woodstock
The only allegations in this regard in the applicant’s Municipality (1901) 18 SC 443 (10 CTR 749)). The ra-
founding papers are contained in the following para- tionale for such decisions appears to be ‘that there is a
graphs of her affidavit which read as follows: relationship of trust between the council and the rate-
payers in respect of municipal funds and property’ (per
13. During the time that lots 38 and 39 have been used Juta AJA in Director of Education, Transvaal v McGagie
as described above, I have suffered ill-health, includ- and Others 1918 AD 616 at 628). The executive govern-
ing shingles and outbreaks of boils and I suspect that ment of a country appears to be on a different footing
the cause of these is related to the unhealthy threat from a local authority (Dalrymple and Others v Colo-
to the environment posed by the above mentioned nial Treasurer 1910 TS 372).
dumping on lots 38 and 39.
Mr. Salmon, for the applicant, set considerable store by
32. Apart from the threat to the health of both my hus- the judgment in Jacobs’s case supra, in which it was held
84
VERSTAPPEN V PORT EDWARD T OWN BOARD & O THERS
that one of the applicants had locus standi to review cer- interdict the respondent from continuing with its unlaw-
tain decisions of the local authority because he was a ful operation. This is not, however, to say that she could
ratepayer thereof. An analysis of the judgment and more not by means of proper evidence establish that she has
particularly that portion thereof at 536D-537H makes it indeed suffered loss as a result of the respondent’s fail-
clear that the locus standi of the ratepayer qua ratepayer ure to obtain a permit to operate its waste disposal site.
arose because the decisions which were being attacked
as ultra vires created a situation that involved the spend- Moreover, she plainly has locus standi to interdict the
ing of municipal funds, albeit to a limited extent. nuisance if she is able to prove that the management and
operation of the site constitutes such a nuisance. It was
I do not consider that the mere fact that some municipal only because she seeks an interdict based on the alleged
funds are obviously spent in managing and operating the unlawfulness of the respondent’s conduct that I have held
waste disposal site can conceivably afford the applicant that the applicant has not established the requisite locus
locus standi to interdict what she regards as an illegality. standi to entitle her to relief on that issue.
It is not established on the papers that the respondent’s
manner of operation of the site is more expensive than But even if I had held or been prepared to assume in
any of the various methods suggested by the applicant. favour of the applicant that her locus standi had been
established ‘prima facie though open to some doubt’, I
In my judgment, therefore, the applicant is not entitled, would not have been inclined to grant an interim inter-
qua ratepayer, to the interim relief sought by her on the dict pending the determination of the main issue of nui-
ground of the alleged unlawfulness of the operation of sance.
the site.
The Court has a discretion to grant an interdict, which is
I may say that, even if I am wrong in this view, the bal- an extraordinary remedy. The balance of convenience is
ance of convenience is so considerably in favour of the usually the decisive factor in determining the proper way
respondent (a matter to which I shall revert presently) to exercise such discretion unless the prospects of suc-
that I should not, in the exercise of my discretion, have cess are substantially in favour of the applicant. (Olym-
been disposed to grant the interim relief sought by her. pic Passenger Service (Pty) Ltd v Ramlagan 1957 (2)
SA 382 (D)). I am not satisfied on the papers that the
Injury and alternative remedy. prospects of success are substantially in favour of the
applicant; but oral evidence may change that opinion.
These are questions 3 and 4 which I was requested to
determine. In the Olympic Passenger Service case supra at 383F
Holmes J said:
The wrong complained of, namely the operation of the
waste disposal site without the appropriate permit, is (B)y balance of convenience is meant the prejudice to
common cause, although the respondent contends that the applicant if the interdict be refused, weighed against
by reason of the failure of the Minister to promulgate the prejudice to the respondent if it be granted.’
regulations in terms of the Act such operation is not un-
lawful. I have already held that there is no merit in this I do not believe that the learned Judge intended to sug-
contention. Obviously, if the respondent’s operation of gested that the manner in which the grant or refusal of
the waste disposal site constitutes a nuisance, that is an an interdict would affect the immediate parties to the liti-
injury actually committed by the respondent or reason- gation was the only matter relevant to a determination of
ably apprehended by the applicant. But it is common the balance of convenience. Where, as in this case, the
cause that the dispute on the question is not capable of wider general public is affected, the convenience of the
resolution on the papers. Moreover, it seems to me that public must be taken into account in any assessment of
in the case of nuisance an interdict is the most satisfac- the balance of convenience (cf Roberts v Chairman, Lo-
tory remedy and a claim for damages is unlikely to be a cal Road Transportation Board, Cape Town, and Another
satisfactory alternative. (2) 1979 (4) SA 604 (C) at 607E; Bamford v Minister of
Community Development and State Auxiliary Services
But as the parties are agreed that the question of nui- 1981 (3) SA 1054 (C) at 1061D; Corium (Pty) Ltd and
sance is one of the issues which, on any basis, must be Others v Myburgh Park Langebaan (Pty) Ltd and Oth-
referred for the hearing of oral evidence, it is unneces- ers 1993 (1) SA 853 (C) at 858F).
sary to provide any answer to questions 3 and 4.
In my opinion, if the interests of the other ratepayers
Discretion and balance of convenience. living in the respondent’s local authority area are taken
into account, the balance of convenience in this matter is
I have already come to the conclusion that the applicant overwhelmingly against the grant of any interim relief
has, on the papers, not established her locus standi to to the applicant, even if one were to assume in her fa-
85
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
vour that she does indeed have locus standi on one or (e) whether any such damage suffered, or on well
other of the bases contended for by her. founded grounds apprehended by the applicant, is
sufficiently material to afford her locus standi to
In my judgment, therefore, the applicant is not entitled claim an interdict on the basis of the first respond-
to any of the interim relief sought by her. Counsel were ent’s failure to obtain a permit in terms of the Envi-
agreed that whether or not I granted such interim relief ronment Conservation Act 73 of 1989;
the matter would have to be referred for the hearing of
oral evidence, inter alia on the issue of the alleged nui- (f) Whether the conduct by the first respondent of the
sance caused by the respondent’s operation of the waste waste disposal site constitutes a nuisance to the ap-
disposal site. At my request counsel agreed on the issues plicant in that:
to be referred for the hearing of oral evidence and I have
only partially altered such agreed draft. (i) it constitutes a danger to her physical or psychologi-
cal health;
Finally it seems to me that the respondent has been suc-
cessful in resisting the applicant’s claim to be entitled to (ii) it unreasonably or unfairly and materially disturbs
interim relief and is therefore entitled to the costs neces- or annoys the applicant or interferes with her rights
sarily involved in the argument before me. The remaining as a co-owner of the properties described in the ap-
costs ought in my judgment to be reserved for the deci- plication;
sion of the Court hearing the oral evidence in the case.
(g) whether, if the said conduct does constitute a nui-
In the result, therefore, the order I grant is the following: sance, any reasonably practicable steps could have
been taken by the first respondent to prevent that
1. The matter is adjourned to dates to be arranged with nuisance, in particular whether the first respondent
the Registrar for the hearing of oral evidence on the could reasonably have utilised an alternative site.
following issues:
2. The Rules of Court shall apply as if this matter were
(a) whether the respondent’s operation of the waste dis- a trial action in which the pleadings had closed and
posal site has the effect of diminishing the value of the issues defined.
the properties situate at and described as lots 40 and
42 Banners Rest, Port Edward; 3. The applicant is to pay the first respondent’s costs
of and incidental to the argument on the question of
(b) whether, if it does, such diminution is more that the interim relief.
diminution which would in any event have been oc-
casioned by the continuation of the site in its former 4. Save as is set forth in para 3 of this order, all the
condition as a disused quarry; costs of the application are reserved for determina-
tion by the Court hearing such oral evidence and de-
(c) alternatively to (a) and (b), whether the applicant termining the said issues.
has a reasonable and well founded apprehension of
such diminution; Applicant’s Attorneys: Garlicke & Bousfield Inc. First
Respondent’s Attorneys: Barry Botha & Breytenbach.
(d) the effect, if any, on the value of the said properties Second, Third and Fourth Respondents’ Attorney: State
of the proposed continued rehabilitation of the waste Attorney.
disposal site;
86
FESTO B ALEGELE & 749 O THERS V D AR E S SALAAM C ITY C OUNCIL
IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
MISC CIVIL CAUSE NO. 90 OF 1991
FESTO BALEGELE AND 794 OTHERS — APPLICANTS
v.
DSM CITY COUNCIL — RESPONDENT
RULING and Mr. Mujulizi argued the respondent’s case on the
raised preliminary objection. Mr. Maikusa replied for the
RUBAMA, S:- applicants’. Briefly the raised preliminary objection was
to the effect that the application before the court was
The application by FESTO BALEGELE and 794 others misconceived and thus qualified to be dismissed. I re-
against the Dar es Salaam City Council made under s.2(2) served ruling; when I came to give it, it was to the effect
of the Judicature and Application of Laws Ordinance, that the raised preliminary objection was without merit.
Cap. 453; the Law Reform (Fatal Accidents and Miscel- I dismissed and undertook to give my reasons for that
laneous Provisions) Ordinance, Cap. 560 as amended by decision “in the final Order of the Court.”
the Law Reform (Fatal Accidents and Miscellaneous Pro-
visions) Ordinance (Amendment) Act, 1968 and s. 95 of In the matter of an Application for Orders of Certiorari,
the Civil Procedure Code, 1966 is for the following Or- Prohibition and Mandamus by Abdi Athumani and 9 oth-
ders: ers v. The District Commissioner of Tunduru District,
The District Executive Director of Tunduru district, The
(i) an Order of certiorari to remove to the High Court District Commissioner of Songea District and the Dis-
and quash the decision of the Respondent to dump trict Executive Director of Songea District, consolidated
the City’s waste and refuse at Kunduchi Mtongani; Miscellaneous Civil Causes No. 2 and 3 of 1987 (Mtwara
Registry) unreported), this Court (Rubama, J.) had ad-
(ii) an Order of Prohibition to prohibit the Respondent dressed itself on the issue that had been raised by the
from continuing to carry out its decision to use respondent as a preliminary point in the matter now be-
Kunduchi - Mtongani as a refuse dumping site. fore the court. I still hold that finding valid and follow it
in this application.
(iii)an Order of Mandamus to direct the Respondent to
discharge its function properly and according to law In the case of Abdi Athumani and 9 others (supra), the
by establishing an appropriate refuse dumping site applicants had sought and obtained Orders of Certiorari
and using it and Prohibition and Mandamus. Some of them had been re-
fused trading licences by the appropriate licencing au-
(iv) an Order that the costs of this Application be met by thorities not in accordance with the Business Licencing
the Respondent. Act No. 25 of 1972. Eight of the Applicant had been
served with Removal Orders under the Township (Re-
The application is supported by a thirty three (33) para- moval of Undesirable Persons) Ordinance. I stated:
graphed affidavit sworn by the said FESTO BALEGELE
and opposed by a twenty four (24) paragraphed counter “.... In entertaining these applications by the ten appli-
affidavit sworn by ALOYSIUS MUJULIZI cants, the Court has usurped no powers . This court has
SSEFUNKUUMA, a soliciter in the employment of the had powers to entertain such applications for ages: see
respondent. In the counter affidavit, the respondent also Northern Tanzania Farmers’ Cooperative Society v. W.H.
gave notice that at the hearing of the application by Festo Shellukindo 1978 LET n. 36. This court, a creature of
Balegele and 794 others, the respondent was going to statute in entertaining such applications performs for the
raise a preliminary objection on points of law. Paragraph benefit of the people. As was stated by Brett, L.J. in R.v.
2 of the counter affidavit detailed the nature of the pre- Local Government Board (1982) 10 QBD 309 at 321
liminary objection on points of law to be raised. This that:
was duly raised on the hearing date. Both Mr. Kakoti
87
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
‘wherever the legislature entrusts to any body of persons Mr. Mwaikusa correctly submitted that refuse collection
other than its superior courts the power of imposing an and its disposal was one of the respondent’s mandatory
obligation upon individuals, the courts ought to exercise duties under the Local Government (Urban Authorities)
as widely as they can the power of controlling those Act, 1982. He further correctly submitted that the
bodies. respondent was required by law to perform its statutory
duties lawfully. Mr. Mwaikusa submitted however that the
It is one of High Court’s duties to exercise supervisory respondent in disposing of the collected city’s refuse and
powers on bodies other than a superior court that are waste at Kunduchi Mtongani was thereby executing its
entrusted by Parliament to take decisions that affect the statutory duty unlawfully. Elaborating on this submission,
rights of the people to ensure that these bodies perform Mr. Mwaikusa quoted to the court several authorities all
within the limits set to them by the Parliament. This en- of which are of persuasive effect. He submitted that the
sures consistent application of the country’s entrenched action of dumping the City’s collected refuse and waste
principles of freedom and justice by the Government at Kunduchi Mtongani was ultra vires the Act as the Dar
agencies. The Parliament’s decision ensures avoidance es Salaam City Council, the respondent:-
of this Republic’s duties being executed on people’s
whims where people are reduced to numbers without any (i) had not taken into consideration the relevant factors
personal regard to hearship [sic] of the very people said in coming to its decision: Associated Provincial Picture
by the officials to be serving. These supervisory powers Houses Limited v. Wednesbury Cooperation (1948) IKB
ensures existence of tangible values like justice, truth, 223. Mr. Mwaikusa argued that the relevant factors that
consistency within which are embedded elements such the respondent should have considered ins electing
as compassion and dedication. The grant by the Parlia- Kunduchi Mtongani as the City’s collected refuse and
ment of these supervisory powers ensures that expedi- waste dumping area were the general land development
ency or ‘might is right’ - forces that are always incon- plan of the area; that Kunduchi Mtongani was zoned a
sistent and without permanency are eliminated. In enter- residential area; that Kunduchi Mtongani was not within
taining such applications, the High Court does not set one of five sites zoned for garbage disposal (ii) choice of
itself to embarrass or belittle the Government or its Agen- the area was without plausible justification. Mr.
cies, in order for itself to look more important in the eyes Mwaikusa pointed out that it was one of the duties of the
of the people. As stated, the supervisory powers have respondent to enforce as provided by ss.35 and 36 of the
been granted to the High Court by the Government and Town and Country Planning Ordinance, Cap. 378 land
common sense dictates that Government would not have development plan. The counsel submitted that the re-
put itself in such untenable position.” spondent was dumping refuse at an area marked resi-
dential and where in fact people are residing thereby
The following facts are not in dispute: posing a health hazard and nuisance to the residents. By
this decision, the counsel went on to submit, the place
(i) that Kunduchi Mtongani is within the area of juris- which is at any rate too small for the requirements of the
diction of the Dar es Salaam City Council; respondent has been an attraction of swarms of flies and
is offensively smelly thereby making life of the residents
(ii) that Kunduchi - Mtongani is zoned in the respond- extremely unbearable. To compound this state, the refuse
ent’s Master Plan as a residential area; has been put on fire emanating smoke. Mr. Mwaikisa
concluded that Kunduchi Mtongari as a refuse dumping
(iii)that the applicants reside at Kunduchi Mtongani; site was too small for the purpose and the methods of the
disposal of the refuse primitive [sic]. The place has been
(iv) that the respondent has been dumping the City’s col- turned into a health hazard and a nuisance to its resi-
lected refuse and waste at Kunduchi Mtongani and dents. The decision of the respondent, Mr. Mwaikusa
instead of at one of the five sites designated in the went on to submit, looked at objectively, was devoid of
City’s Master Plan for dumping the collected City’s any plausible justification that could have made any rea-
refuse and waste effective September, 1991 soon sonable body of persons reach it: Bromley London Bor-
following this Court’s order in Civil Case 299/88 ough Council v. London Council and Another (1982) I
(Dar es Salaam Registry) in which the respondent All ER 129. (iii) appeared to have reached its decision
was ordered not to dump refuse at Tabata; of the choice of the area through outside dictation. Mr.
Mwaikusa submitted that it appeared the respondent was
(v) that the dumped refuse and waste at Kunduchi dictated to by the Central Government on the choice of
Mtongani is presently burning emanating much Kunduchi Mtongani as the City’s refuse dumping place.
smoke covering a wide area; As the enabling Act does not permit the respondent to
abdicate its powers in favour or another body, Mr.
(vi) that the dumped refuse and waste emanates offen- Mwaikusa argued, the act of the respondent was ultra
sive smell and has attracted swarms of flies. wires the Act. H. Lavender & Son Ltd. v. Minister of
88
FESTO B ALEGELE & 749 O THERS V D AR E S SALAAM C ITY C OUNCIL
Housing and Local Government (1970) 2 All ER 871. by the decision of the respondent. I accept the affidavit
of Festo Balegele that the residents of Kunduchi
Mr. Mwaikusa further submitted that the applicants, resi- Mtongani working through its Committee of which the
dents of Kunduchi Mtongani were “aggrieved” and thus said Festo Balegele was the secretary and through its
with locus standi to apply for the orders of certiorari and Member of Parliament had made representations to the
prohibition, Regina v. Liverpool Corporation, Ex. parte respondent, among others, to stop dumping the City’s
Liverpool Taxi Fleet Operators’ Association and Another collected refuse and waste at Kunduchi Mtongani but to
(1972) 2 Q.B. 299. no avail. Their representations were not taken seriously.
Mr. Mwaikusa lastly prayed for an order of Mandamus Taking into consideration the submission of Mr.
by requiring of the respondent (i) stoppage of the nui- Mwaikusa on this issue, I find that the applicants resort
sance it was causing, (ii) compliance with this Court’s to this court was in order. As what this Court had said in
Order issued in the case of Joseph D. Kessy and Others Abdi Athumani and others v. The District Commissioner
v. The City Council of Dar es Salaam Civil, Case No. of Tunduru District, the District Executive Director of
299 of 1988 (Dar es Salaam Registry) (unreported) (iii) Tunduru District, The District Commissioner of Songea
compliance with the land development plan by selecting District and the District Executive Director of Songea
one of the five sites designated for the City’s disposal of District (supra) at p. 23 appropriately covers the appli-
collected refuse and waste as shown in the City’s Master cants in the application under consideration, I find it fit-
Plan. ting to adopt it here:
Mr. Kakoti, the respondent’s solicitor submitted that the “... applicants in resorting to this Court have done noth-
respondent in disposing of refuse at Kunduchi Mtongani ing wrong or unconstitutional at all. For the applicants
is performing a statutory duty lawfully. In landfilling the to have come to this Court in search of justice have dem-
abandoned stone quarries at Kunduchi Mtongani, the onstrated their belief in the even handed administration
respondent are “reconditioning” the land through sani- of justice in this Republic. Every citizen has a right when
tary landfilling. This action was not ultra vires the Act. he feels that the Government does not function within
As for the sought order of Mandamus, by Mr. Kikoti the orbit or limits dictated by justice that it-the Govern-
submitted that the applicants had not complied with the ment-had set on itself to seek redress in courts of law. A
conditions preodent for the issue of the Order: Alfred move by citizens such as these ... applicants have taken
Lakaru v. Town Director (Arusha) (1980 TLR 326 in search of what they consider as their rights should not
(Maganga, J.). be taken as intended to embarrass the Government or its
Agencies. ... It is in the interest of all people of good
On the submission by Mr. Mwaikusa that the respondent will, reason, foresight, moderation and certainly the
appeared to be acting on dictation of the Central Gov- Government that one of its institutions clothed with ap-
ernment thereby making its action of dumping garbage propriate powers exists to reassure the people that the
at Kunduchi Mtongani ultra vires the Act, Mr. Kakoti Republic’s admirable objectives and their executions are
submitted that it was the duty of the Treasury of the Re- intact.
public to provide such funds as were adequate for the
provision of public health service. On the order of pro- On consideration of the affidavit, counter affidavits and
hibition, Mr. Mujulizi submitted that it was not the in- the very elaborate and able submissions by the three coun-
tention of the respondent to dispose of refuse at Kunduchi sel, I am of the view that the respondent’s decision of
Mtongani indefinitely. The decision to dispose of refuse disposing the City’s refuse and waste at Kunduchi
at the area was a temporary one while the respondent Mtongani was ultra vires the Local Government (Urban
was looking for an alternative place for the dumping Authorities) Act, 1982 for the reasons submitted by Mr.
refuse. Mr. Mukulini prayed that the court exercise its Mwaikusa which I accept. Further the manner of dis-
discretion in favour of the respondent who would other- posal of the collected refuse and waste terminates any
wise fail to perform its statutory duty of refuse collec- possible claim by Mr. Kakoti that the respondent are in
tion and disposal. the process of reconditioning the disused stone quarries
at Kunduchi Mtongani. By collecting refuse from all over
I have above dealt with the issue of court’s jurisdiction the City to dump it at Kunduchi Mtongani contrary to
in entertaining applications for orders of certiorari, pro- the City’s Master Plant; that Kunduchi Mtongani is by
hibition and mandamus. It is best that I move on to deal this Master Plan not zoned as one of the five sites for
with the issue of the locus standi of the applicants as refuse disposal but zoned residential and that there are
both Mr. Mwaikusa and Mr. Kakoti had touched the sub- several people residing there to whom a nuisance has
ject in their submissions. It is not disputed that the appli- been created. The place has been made intolerably smelly
cants are residents of Kunduchi Mtongani. This taken and dirty with flies all over and the deposited refuse burn-
together with the several facts that I have outlined above ing and emanating smoke. It is a statutory duty of the
as not disputed make the applicants persons “aggrieved” City Council, the respondent; to stop nuisance and not
89
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
to create it. The submission by Mr. Kakoti that the re- In view of the findings, this Court brings into court the
spondent was respondent was reconditioning the land at decision of the respondent of dumping refuse at Kunduchi
Kunduchi Mtongani stands no close examination. What Mtongari and quashes it. This court further prohibits the
the respondent is doing now is not sanitary landfilling as Dar es Salaam City Council from continuing to carry
that process is understood but just refuse dumping. The out its decision of using Kunduchi Mtongani as a refuse
dumped refuse attracts flies and emanates foul smell. The dumping site. This court lastly issues an order of
dumped refuse which has been set on fire emanates smoke mandamus and directs the Dar es Salaam City Council
which could be a source of danger to the residents’ health. to discharge its function properly and in accordance with
It is not material in this regard who has set fire to the the law by establishing an appropriate refuse dumping
dumped refuse; it is its after effects that is of concern site and using it.
here. As to Mr. Mujulizi’s submission that the respond-
ent intends to use Kunduchi Mtongani dump temporar- The respondent is to bear the costs of this application.
ily to give itself time to look for and locate another site, Lastly I wish to highlight two points that this Court is
I only have to state that the respondent has had a long not here concerned with the wisdom or, indeed, the fair-
time to sort out this matter. By the very existence of five ness of the respondent’s decision of selecting Kunduchi
sites in its Master Plan for refuse disposal, the question Mtongani as the City’s dumping place of the collected
of unpreparedness does not arise. But even if the Master refuse and waste. All I am concerned with is the legality
Plan had not provided for the possible sites for refuse of that decision: was it within the powers that the Re-
dumping, I would still not find merit in the submission public’s Parliament has conferred by legislation to the
of Mr. Mujulizi on the issue of being given time to look Dar es Salaam City Council? Secondly, I wish to em-
for a dumping site. Refuse collection and disposal as one phatically state that I have not come to the above deci-
of the statutory duties of the respondent should have been sion lightly. I bear in mind that only on 9th September,
given then priority treatment it deserved. Peoples’ health 1991, the respondent was ordered by this Court to stop
and enjoyment of life are partly dependent on living on disposal of the City’s refuse at Tabata Dump. I take judi-
healthy surroundings. I would further reject Mr. cial notice of the disorientation that order had caused to
Mujulizi’s submission in this regard for the very reasons the respondent, but I can do nothing in this regard than
stated by Lugakingira, J. in Joseph D. Kessy and others to express understanding of the feeling and then to apply
v. The City Council (supra) at p. 15 to 16 of the hand the law. I can do no better than adopt the poetic and ex-
written ruling: tremely illustrative language of MAKAME, J. (as he then
was) in the case of Republic v. Agnes Doris Liundi (1980)
“I will say at once that I have never heard it anywhere TLR 38, 44, to express my view of how my hands are
for a public authority, or even an individual, to go to court tied:
and confidently seek for permission to pollute the envi-
ronment and endanger peoples’ lives, regardless of their “... This necessary finding causes me personal anguish,
number. Such wonders appear to be peculiarly Tanza- but my powers and my interpretation role are circum-
nian, but I regret to say that it is not given to any court to scribed by the law. I have to take the law as it is, not as I
grant such a prayer. Article 14 of our Constitution pro- might personally wish it to be. I have my legal training
vides that every person has a right to live and to protec- and professional ethics to be true to my oath of office to
tion of his life by the society. It is therefore a contradic- be faithful to, and at the end of the day my conscience to
tion in terms and a denial of this basic right deliberately live with. As William Shakespeare puts it, “So does con-
to expose anybody’s life to danger or, what is eminently science make cowards of us all.”
monstrous, to enlist the assistance of the Court in this
infringement.”
YAHYA RUBAMA
JUDGE
3/1/92
Coram - RUBAMA, J
Mr. Maikusa assisted by Mr. Naasoro for the applicants.
Mr. Kaketi assisted by Mr. Mujulizi for the respondents.
Ruling delivered.
YAHYA RUBAMA
JUDGE
3.1.92
90
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
WILDLIFE SOCIETY OF SOUTHERN AFRICA AND OTHERS
v.
MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
TRANSKEI SUPREME COURT PICKERING J
1996 June 21, 27 Case No 1672/95
Environmental law—Environmental conservation—Ap- The third and fourth applicants were two lawful occupi-
plication for mandamus compelling State ers of cottages on the Wild Coast and members of the
Wild Coast Cottage Owners Association. The first re-
to comply with its obligations to protect environment spondent was the Minister of Environmental Affairs of
imposed by statute—Wildlife Society having locus standi South Africa, the second respondent the Premier of the
to apply for such order by virtue of s 7 of Constitution of Eastern Cape, the third respondent the Minister of Agri-
the Republic of South Africa Act 200 of 1993. culture and Environmental Planning of the Eastern Cape
and the fourth to seventh respondents the chiefs or head-
Environmental law—Environmental conservation—Ap- men of certain areas in the Eastern Cape.
plication for mandamus compelling
The applicants contended that the fourth to seventh re-
State to comply with its obligations to protect environ- spondents had granted rights of
ment imposed by statute—Order granted where State’s
actions falling short of compliance with such statutory occupation and had allocated sites within the coastal con-
obligation. servation area to private individuals, in each case for a
relatively small consideration. Shacks and dwellings had
Recusal—Of presiding Judge in civil trial—On grounds been constructed on those sites, which had resulted en-
of bias—Application for mandamus vironmental degradation, and roads, pathways and tracks
had been created through environmentally sensitive ar-
compelling State to comply with statutory obligations to eas. It was conceded that considerable and irreversible
protect environment—Some of applicants members of environmental degradation of the Transkei Wild Coast
Wild Coast Cottage Owners Association—Presiding within the coastal conservation zone had been and was
Judge occupier or owner of cottage on Wild Coast— occurring at the time of institution of the proceedings.
Judge not member of Association—Fact of occupation The applicants contended that, despite all their efforts at
not giving rise to reasonable apprehension of bias—Judge persuading the first to third respondents to comply with
not standing to gain from proceedings—Application re- the obligation to enforce compliance with the provisions
fused. of s 39 of the Decree, the respondents had not done so. It
was common cause that the administration of s 39 was
Practice—Parties—Locus standi—Where statute impos- vested in the first respondent.
ing obligation on State to protect
At the commencement of the hearing of the application
environment—Semble: Body such as Wildlife Society the Court was informed that an
should have locus standi at common law to apply for
order compelling State to comply with its obligations in agreement had been reached between the applicants and
terms of statute. the second and third respondents which terminated the
litigation between the applicants and those parties.
The applicants applied for an order compelling the first,
second and third respondents to take The first respondent applied in limine for the recusal of
the presiding Judge on the grounds
steps to enforce the provisions of s 39(2) of Decree 9
(Environment Conservation) of 24 July 1992 (Tk). The that he was the occupier or owner of a cottage on the
first applicant was the Wildlife Society of Southern Af- Wild Coast. It was contended that this fact could cause
rica and the second applicant its Conservation Director. the first respondent reasonably to suspect that the pre-
91
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
siding Judge would be biased against the first respond- Court held accordingly that the applicants were entitled
ent. The presiding Judge refused the application, stating to an order that first respondent enforce the provisions
that he was neither a member of the Cottage Owners of s 39(2) of the Decree.
Association nor of the Wildlife Society. He was of the
opinion that, were his occupation of the cottage in ques- The following decided cases were referred to in the judg-
tion illegal in terms of the Decree, the mandamus sought ment of the Court:
by appellants would obviously be inimical to his own
interests. In any event, the mere fact that he was the oc- Bamford v Minister of Community Development and State
cupier of a cottage on the Wild Coast could not in any Auxiliary Services 1981 (3)
way give rise to a reasonable apprehension of bias on his
part. SA 1054 (C)
After initially contesting the applicants’ locus standi, the Bromley London Borough Council v Greater London
first respondent conceded this issue Council and Another [1982]
on the basis that the applicants had locus standi by vir- All ER 129 (CA)
tue of the provisions of s 7(4)(b) read with s 29 of the
Constitution of the Republic of South Africa Act 200 of BTR Industries South Africa (Pty) Ltd and Others v Metal
1993. The Court remarked, obiter, that there was much and Allied Workers’ Union
to be said for the view that in circumstances where the
locus standi afforded to persons by s 7 of the Constitu- and Another 1992 (3) SA 673 (A)
tion was not applicable and when a statute imposed an
obligation upon the State to take certain measures in or- Executive Council, Western Cape Legislature, and Oth-
der to protect the environment in the interests of the pub- ers v President of the Republic
lic, then a body such as the first applicant, with its main
object being to promote environmental conservation in of South Africa and Others 1995 (4) SA 877 (CC) (1995
South Africa, should have locus standi at common law (10) BCLR 1289)
to apply for an order compelling the State to comply with
its obligations in terms of such statute. One of the prin- R v Inland Revenue, Commissioners: Ex parte National
cipal objections often raised against the adoption of a Federation of Self-Employed
more flexible approach to the problem of locus standi
was that the floodgates would thereby be opened, giving and Small Businesses Ltd [1982] AC 617
rise to an uncontrollable torrent of litigation. It was not
certain that to afford locus standi to a body such as the R v Inspectorate of Pollution and Another, Ex parte
first applicant in circumstances such as these would open Greenpeace Ltd (No 2) [1994] 4
the floodgates to a torrent of frivolous or vexatious liti-
gation against the State by cranks or busybodies. Nei- All ER 329 (QB)
ther was it certain, given the exorbitant costs of Supreme
Court litigation, that, should the law be so adapted, cranks Sher and Others v Sadowitz 1970 (193 (C)
and busybodies would flood the Courts with vexatious
or frivolous applications against the State. Should they Van Huysteen and Others NNO v Minister of Environ-
be tempted to do so, an appropriate order of costs would mental Affairs and Tourism and
soon inhibit their litigious ardour. It might well be that
the time has arrived for a re-examination of the com- Others 1996 (1) SA 283 (C).
mon-law rules of standing in environmental matters in-
volving the State and for an adaptation of such rules to The following statutes were considered by the Court:
meet the ever-changing needs of society.
The Constitution of the Republic of South Africa Act
As regards the merits of the application for a mandamus, 200 of 1993, ss 7, 126(3), 229,
the first respondent’s opposition to
235(6): see Juta’s Statutes of South Africa 1995 vol 5 at
the application rested largely upon the fact that there was 1-209
in existence a Task Group which had been established to
tackle the issue. The Court held, however, that the Task Decree 9 (Environmental Conservation) of 24 July 1992
Group was a non-statutory, advisory body of uncertain (Tk), s 39.
nature and duration, whose actions had in any event fallen
short of establishing that the provisions of s 39(2) of the Application for an order compelling the respondents to
Decree were being enforced by first respondent. The enforce the provisions of Decree 9 (Environment Con-
92
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
servation) promulgated by the former government of and third respondents are ordered forthwith to take
Transkei on 24 July 1992. The facts appear from the rea- such steps and to do all such things as may be nec-
sons for judgment. essary to:
J J Gauntlett SC (with him R A K Vahed) for the appli- (a) enforce the provisions of the Act;
cants.
(b) comply with the aforesaid General Policy;
M T K Moerane SC (with him L P Pakade) for the first
respondent. (c) secure compliance with the aforesaid General Policy
X M Petse for second and third respondents. in the territory that formerly constituted the Republic of
Transkei.
No appearances for fourth to seventh respondents.
4. That, save to the extent that they may be permitted
Cur adv vult. to in terms of any law, the fourth, fifth, sixth and
seventh respondents be and they are hereby restrained
Postea (June 27). and interdicted from granting or purporting to grant
any rights in land which formed part of the territory
Pickering J: The four applicants herein, namely the that formerly constituted the Republic of Transkei.
Wildlife Society of Southern Africa, Keith Cooper, the
Conservation Director of the Wildlife Society, and two 5. That the respondents, jointly and severally, are or-
lawful occupiers of certain cottages on the Transkei Wild dered to pay the costs of this application.’
Coast, seek, as first to fourth applicants respectively, an
order against the Minister of Environmental Affairs and First applicant, an association incorporated not for gain
Tourism of the Republic of South Africa (first respond- in terms of s 21 of the Companies Act 61 of 1973, was
ent); the Premier of the Eastern Cape Province (second incorporated with its main object being
respondent); the Member of the Executive Council for
Agriculture and Environmental Planning of the Eastern ‘to promote environmental conservation and environmen-
Cape Province (third respondent) and four chiefs or head- tal education in Southern Africa’.
men of certain administrative areas (fourth to seventh
respondents) in the following terms: Its aim is ‘to promote public participation in caring for
the Earth’ and its credo and mission is
1. That the first, second and third respondents are or-
dered forthwith to take such steps and to do such ‘to contribute to conserving the Earth’s vitality and di-
things as may be necessary: versity by:
(a) to enforce the provisions of Decree No 9 (Environ- (a) promoting and participating in environmental edu-
ment Conservation) promulgated by the former Gov- cation;
ernment of Transkei on 24 July 1992 (“the Decree”);
(b) building environmental values and sustainable life
(b) to, without derogating from the generality of para styles;
1(a) hereof, enforce the provisions of s 39(2) of the
Decree in the coastal conservation area established (c) securing the protection and wise use of natural areas
in terms of s 39(1) of the Decree. of wild life;
2. That it is hereby declared that, save to the extent (d) generating individual and community action;
that the Environment Conservation Act 73 of 1989
(“the Act”) and the General Policy determined in (e) serving as an environmental watchdog;
terms of s 2 of the Act on 21 January 1994 and 9
May 1994 conflicts with or contradicts the Decree (f) influencing policy and decision-making;
in particular and other legislation of the former Gov-
ernment of Transkei in general, the Act and the said (g) operating democratically’.
General Policy apply to and are enforceable in the
territory that formerly constituted the Republic of Third and fourth applicants are members of the Wild Coast
Transkei. Cottage Owners Association (‘the Cottage Owners Asso-
ciation’), a voluntary association of persons who are all
3. That subject to para 2 of this order, the first, second owners or occupiers of approved sites in designated and
recognized resort areas along the Transkei Wild Coast.
93
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
It is common cause between the parties that over the past (i) carry on any other activity which disturbs the natu-
few years certain land use practices have developed along ral state of the vegetation, the land or any waters or
almost the entire Transkeian coast line which have been which may be prescribed.’
destructive, are destructive and are potentially destruc-
tive of the ecological integrity of that coast line and that, The land practices and other activities with which appli-
as such, they constitute a very real threat to the environ- cants are concerned are set out in the affidavit of
mental sensitivity of the area in question. Mr. Cooper as follows:
In order fully to understand applicants’ complaints in (a) the grant of rights of occupation and the allocation
respect of such land use practices it is necessary to set of sites within the coastal conservation area by indi-
out the provisions of s 39 of Decree 9 (Environmental vidual chiefs, headmen or tribal authorities (includ-
Conservation) (Tk) (‘the Decree’) referred to in para 1 ing the fourth to seventh respondents) to private in-
of the notice of motion. Section 39 provides as follows: dividuals which result in effect to a disposal of the
land in question for a relatively small consideration;
39(1) There is hereby established on the landward side
of the entire length of the sea-shore excluding any na- (b) the construction of shacks, dwellings and other struc-
tional park, national wildlife reserve, municipal land, sea- tures on such sites aforesaid resulting in environ-
side resort, site occupied in terms of proc 174 of 1921 or mental degradation and detracting from the aesthetic
Proc 26 of 1936, privately-owned land and leasehold land, qualities of the coastal conservation zone;
a coastal conservation area 1 000 metres wide measured:-
(c) the construction of roads, pathways and tracks along
(a) in relation to the sea, as distinct from a tidal river cliff edges, through forests and other environmen-
and tidal lagoon, from the high-water mark; tally sensitive areas causing permanent damage to
such areas and which again detract from the envi-
(b) in relation to a tidal river or tidal lagoon, from the ronmentally aesthetic qualities of the coastal con-
highest water-level reached during ordinary storms servation zone;
during the most stormy period of the year, exclud-
ing exceptional or abnormal floods. (d) the insensitive and unsustainable exploitation of the
resources (including the marine resources) in such
(2) Notwithstanding anything in any other law or in any areas’.
condition of title contained, no person (including any
department of State) shall within the coastal conser- These practices occur along and within almost the entire
vation area, save under the authority of a permit is- Transkeian coastal conservation zone established in terms
sued by the Department in accordance with the plan of s 39(1) of the Decree. In some instances, in return for
for the control of coastal development approved by the allocation of a site to a particular individual, the chief
resolution of the Military Council:- or headman involved was paid an amount in the order of
approximately R200 together with a bottle of brandy. Nei-
(a) clear any land or remove any sand, soil, stone or ther chiefs nor headmen have authority to allocate sites.
vegetation;
All these averments are admitted by first respondent.
(b) develop any picnic area, caravan park or like amen-
ity; Applicants have set out in great detail specific instances
of such abuses which have been and are occurring within
(c) erect any building; areas falling within the coastal conservation zones. The
abuses are graphically illustrated in the photographs an-
(d) construct any railway, landing-strip, slipway, land- nexed both to the founding affidavit and to the replying
ing stage or jetty; affidavit attested to by third applicant, Mr. MacRobert.
The destruction of natural vegetation; of indigenous bush;
(e) build any dam, canal, reservoir, water purification of coastal dunes and forest; and of mangrove areas, in
plant, septic tank or sewerage works; order to clear the way for construction to take place, is
clearly depicted. It is clear, therefore, and this is not de-
(f) lay any pipeline or erect any power-line or fencing; nied by the respondents, that considerable and irrevers-
ible environmental degradation of the Transkei Wild
(g) establish any waste disposal site or dump any refuse; Coast within the coastal conservation zone has been and
was occurring at the time of the institution of these pro-
(h) construct any public or private road or any bridle- ceedings on 7 September 1995, in blatant contravention
path or footpath; or of the provisions of s 39 of the Decree.
94
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
Second applicant avers in his affidavit that he has been, tion in good faith and that the application amounts to an
both personally and in his capacity as Conservation Di- abuse of the process of Court in that applicants were
rector of first applicant, closely associated with and in- aware or should have been aware of the recommenda-
terested in the environmental and nature conservation tion made by first respondent during May 1995 to the
priorities along the Wild Coast for more than 20 years. effect that a task group be established to address the con-
He was the chief architect of a report published by first cerns of the applicants.
applicant during April 1977 at the request of the then
Transkei government, in which a preliminary survey of The Eastern Cape Coastal Development Task Group (‘the
the Wild Coast was undertaken in order to assist that Task Group’), in the formation of which Mr. Botha avers
Government with its development plans. During 1992 the Cottage Owners Association, amongst others, was in-
first applicant was retained by the then Transkei govern- strumental, held its first meeting on 14 August 1995 and
ment to compile a survey of Transkei forests, including the Cottage Owners Association, of which third applicant
all the coastal forests, and second applicant was again is a member, was there represented by fourth applicant.
involved in the publication thereof. The brief of the Task Group, as set out in Mr. Botha’s
affidavit, is to address, inter alia, the following issues:
Because of the concern of the applicants at the unabated
environmental degradation observed by them, they, to- 1. Determining and drafting appropriate amendments
gether with certain others, instructed their attorneys to to the Environment Conservation Act 73 of 1989 to
address a letter on 16 May 1995 to, inter alia, first, sec- enable it to apply in the former Transkei and Ciskei.
ond and third respondents in which attention was drawn
to the unlawful practices which were occurring and in 2. Establishing a sub-committee to identify and pro-
which the respondents were requested to take the requi- ceed with appropriate action to assign relevant de-
site action in order to put a halt to such practices. On 17 crees to the Eastern Cape Provincial Government.
May 1995 fourth applicant, Mr. Taylor, and his attorney,
Mr. Ridl, attended a meeting at Bisho with third respond- 3. Making recommendations regarding the replacement
ent, Minister Delport, at which, inter alia, third respond- of decrees with relevant sections of the Environment
ent indicated that he wished to co-operate with the ef- Conservation Act.
forts made by applicants to halt the unlawful practices
but that he had had no success since taking office in pre- 4. Assisting the Eastern Cape Government to direct a
venting them. It was agreed that Mr. Ridl would prepare formal request to the Department of Environmental
a memorandum for third respondent, detailing the law Affairs for the president to assign relevant decrees
applicable and setting out the steps which could be taken or sections thereof to the Eastern Cape provincial
by him. Such a memorandum was duly prepared and Government.
delivered to third respondent. Mr Ridl referred therein
specifically to s 39 of the Decree and urged, inter alia, 5. Undertaking a survey of the coast line to determine
that criminal prosecutions should be instituted without the number, position, state and ownership of:
delay against identified offenders.
(i) legal cottages;
Prior to the meeting with third respondent the third ap-
plicant, Mr. MacRobert, had met with second respond- (ii) illegal cottages;
ent, Premier Mhlaba, who had stated in relation to the
destructive activities taking place that the applicants (iii) other developments.
should ‘stop the vultures’.
6. Presenting data to the relevant authorities with re-
Applicants aver that, despite all their efforts to persuade gard to possible legal action against illegal occupi-
first, second and third respondents to comply with the ers of coastal sites.’
obligation to enforce compliance with the provisions of
s 39 of the Decree, the respondents have not done so and Mr. Botha refers further to the fact that certain action
that they are accordingly obliged to seek the relief set has been taken by first respondent relating to the institu-
out in the notice of motion. tion of criminal proceedings in the Port St. John’s mag-
istrate’s court against certain persons in respect of al-
It is common cause that the administration of chapter 7 leged contraventions of s 39 of the Decree, as well as an
of the Decree, within which falls s 39, is vested in first application for an interdict brought on 31 October 1995
respondent, and only first respondent chose to file an in the Transkei provincial Division by first respondent
affidavit in opposition to this application. In this affida- against nine respondents (including the fourth respond-
vit, attested to by Mr. Botha, a legal administration of- ent in these proceedings). He states that other applica-
ficer in the employ of first respondent’s department,it is tions for interdicts against illegal occupiers of other sites
averred that the applicants have not brought the applica- along the Wild Coast will soon be launched.
95
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
In reply the applicants deny that they were or should have no imputation upon my integrity. After hearing argument
been aware of the recommendation allegedly made by in this regard I refused the application for my recusal
first respondent during May 1995, in that no public ref- and indicated that my reasons for so doing would fol-
erence to such recommendation was made by first re- low. These then are my reasons:
spondent either in the Parliamentary debate on his de-
partment or elsewhere. In this regard it appears from the The law in respect of the test for bias has recently been
minutes of the first meeting of the Task Group that such settled in the case of BTR Industries South Africa (Pty)
recommendation was contained in a letter written by first Ltd and Others v Metal and Allied Workers’ Union and
respondent to third respondent. Applicants admit that on Another 1992 (3) SA 673 (A). At 694F-695B Hoexter
13 July 1995 fourth applicant was invited to be a mem- JA stated:
ber of the Task Group, but allege that this was the first
intimation any of the applicants had concerning the es- In R v Chondi and Another 1933 OPD 267 Krause JP made
tablishment thereof. They point out that, despite their the following observations (at 271) which in this country
wealth of experience and knowledge of the Transkei coast are as pertinent now as they were some 60 years ago:
line, neither first nor second applicants were invited to
participate in the affairs of the Task Group. They allege “It is a matter in of the gravest public policy that the
further that the action taken by first respondent in order impartiality of the courts of justice should not be doubted,
to enforce compliance with s 39 of the Decree was only or that the fairness of a trial should not be questioned;
taken after institution of these proceedings. They aver otherwise, the only bulwark of the liberty of the subject,
that the unlawful development taking place in the coastal in these times of revolutionary tendencies, would be un-
conservation zone has actually increased since the insti- dermined.”
tution of these proceedings and furnish details, again
supported by photographic evidence, of illegal building It is the right of the public to have their cases decided by
activities which occurred at various places along the Wild persons who are free not only from fear but also from
Coast during the months of October to December 1995, favour. In the end the only guarantee of impartiality on
immediately prior to the filing of the replying affidavit the part of the courts is conspicuous impartiality. To in-
and in respect of which first respondent has taken no sist upon the appearance of a real likelihood of bias
action. They deny therefore that the application consti- would, I think, cut at the very root of the principle, deeply
tutes an abuse of the proceedings of the Court. embedded in our law, that justice must be seen to be done.
It would impede rather than advance the due administra-
At the commencement of the hearing of the application I tion of justice. It is a hallowed maxim that if a judicial
was informed that an agreement had been reached be- officer has any interest in the outcome of the matter be-
tween applicants and the second and third respondents, fore him (save an interest so clearly trivial in nature as to
who were concerned that the litigation should be resolved be disregarded under the de minimis principle) he is dis-
and that proper communication between themselves and qualified, no matter how small the interest may be. See
applicants should be restored. The terms of that agree- in this regard the remarks of Lush J in Sergeant and Oth-
ment are not relevant to the determination of this appli- ers v Dale (1877) 2 QBD 558 at 567. The law does not
cation. The application then proceeded against first and seek, in such a case, to measure the amount of his inter-
fourth to seventh respondents. Although I was informed est. I venture to suggest that the matter stands no differ-
by both Mr. Gauntlett, who with Mr. Vahed appeared for ently with regard to the apprehension of bias by a lay
applicants, and Mr Moerane, who with Mr. Pakade ap- litigant. Provided the suspicion of partiality is one which
peared for first respondent, that fourth to seventh respond- might reasonably be entertained by a lay litigant a re-
ents had, to the best of their knowledge, not entered an viewing Court cannot, so I consider, be called upon to
appearance to oppose the application, I have since dis- measure in a nice balance the precise extent of the ap-
covered, whilst in the course of preparing this judgment, parent risk. If suspicion is reasonably apprehended, then
just such a notice not forming part of the indexed pa- that is an end to the matter. I find myself in complete
pers. Fourth to seventh respondents did not, however, agreement with what was forcibly stated by Edmund
file any opposing papers, nor were they represented at Davies LJ in the Metropolitan Properties case supra at
the hearing of the application. In the circumstances it 314C-D:
can be taken that they abide by the decision of the Court.
“With profound respect to those who have propounded
Application for recusal the ‘real likelihood’ test, I take the view that the require-
ment that justice must manifestly be done operates with
Before commencement of argument Mr Moerane in- undiminished force in cases where bias is alleged, and
formed me that he had instructions to apply for my recusal that any development which appears to emasculate that
from the case. He stressed that in making the application requirement should be strongly resisted.”’
he was acting on the specific instructions of the Govern-
ment Attorney, Mr. Jika, and that the application involved With these remarks in mind I turn to consider the merits
96
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
of the application. The relief sought by applicants is, in- Accordingly the application falls to be dismissed.
ter alia, the first respondent to enforce the provisions of
the Decree, more especially in relation to the illegal build- Locus standi
ing of cottages and roads in the coastal conservation zone;
and (ii) a declarator to the effect that the provisions of The first issue raised, and one which occupied a not in-
the Environment Conservation Act 73 of 1989 apply to considerable part of applicant’s heads of argument, con-
the area comprising the former Transkei insofar as they cerned the question of locus standi . Despite the earlier
are not inconsistent with the provisions of the Decree. It attitude of first respondent as evinced in Mr Botha’s af-
is perhaps also relevant to reiterate that third and fourth fidavit, Mr. Moerane in his heads of argument conceded
applicants are lawful occupiers of cottages on the Wild that applicants had locus standi. As I understand it, this
Coast and that both are members of the Cottage Owners concession was based on the provisions of s 7(4)(b), read
Association. I am not now, nor have I been, a member of with s 29, of the Constitution of the Republic of South
the Cottage Owners Association or of the Wildlife Soci- Africa Act 200 of 1993 (‘the Constitution’). See Van
ety. Huysteen and Others NNO v Minister of Environmental
Affairs and Tourism and Others 1996 (1) SA 283 (C).
The basis of the application for my recusal is that I too
am the (lawful) occupier/owner of a cottage on the Wild I may mention that in my opinion there is also much to
Coast and that this fact may cause the first respondent be said for the view that, in circumstances where the lo-
reasonably to entertain the suspicion that I will be bi- cus standi afforded persons by s 7 of the Constitution is
ased against it. I have deliberately placed the word ‘law- not applicable and where a statute imposes an obligation
ful’ in parenthesis as the gravamen of Mr Moerane’s sub- upon the State to take certain measures in order to pro-
mission appears to be that because the legality of the tect the environment in the interests of the public, then a
occupation and/or ownership of certain cottages on the body such as the first applicant, with its main object be-
Wild Coast is under scrutiny, not only by first respond- ing to promote environmental conservation in South Af-
ent, but also by the well-known Heath Commission into rica, should have locus standi at common law to apply
unlawful land dealings in the Eastern Cape, my right, for an order compelling the State to comply with its ob-
title or interest to the cottage which I occupy may well ligations in terms of such statute.
be under threat. In these circumstances a reasonable per-
ception might be created that I could not apply my mind In a far-sighted article, ‘The Ecological Norm in Law or
objectively to the issues raised by the application. I do the Jurisprudence of the Right Against Pollution’ (1975)
not intend to enter into a debate as to the legality or oth- 92 SALJ 78, the late Professor Barend van Niekerk stated
erwise of my occupation of the cottage in question which, that the knowledge which society had then about the
to the best of my knowledge, was constructed more than nature of environmental pollution and its encroaching
60 years prior to the promulgation of the Decree, although dangers to all members of society called urgently for
I have no reason to doubt such legality. In my view Mr
Moerane’s argument bears the seeds of its own destruc- ‘a critical re-evaluation of how the existing legal rules
tion. Having regard to the nature of the main relief sought concerning locus standi should be adapted in order to
herein, namely the enforcement of the provisions of the cope more adequately with the interests of society in
Decree against illegal occupiers and builders of cottages, general and of each member of society in particular’.
it seems to me that the only parties who could remotely
have cause to complain about my possible partiality are (AT 88.) He was of the opinion that the most obvious
the applicants. Were my occupation of the cottage to be solution to the problem of locus standi was ‘to regard
illegal in terms of the Decree the mandamus sought by the environment as being peculiarly of interest to every
applicants would obviously be inimicable to my own member of society’ and he continued by saying that, be-
interests. cause the effect of environmental blight will not spare
any member of society in the final analysis, it did not
In any event, leaving the argument as to legality aside, I seem misplaced
have no doubt whatsoever that the mere fact that I am
the occupier of a cottage on the Wild Coast, in the ab- ‘in terms of existing legal principles to give every mem-
sence of anything more such as my membership of the ber of society the right to protect what amounts to his
Cottage Owners Association, could not in any way in own interest. An adoption of this line of reasoning will
the circumstances of this case give rise to a reasonable not ... erode the basic principle of our law on which lo-
apprehension of bias on my part by first respondent. cus standi to sue is based, namely “that no man can sue
Compare Bromley London Borough Council v Greater in respect of a wrongful act, unless it constitutes the
London Council and Another [1982] 1 ALL ER 129 (CA) breach of a duty owed to him by the wrong-doer, or un-
at 131j-132a. less it causes him some damage in law”.’
97
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
See too Rabie and Eckard ‘Locus Standi: The Adminis- locus standi is that the floodgates will thereby be opened,
tration’s Shield and the Environmentalist’s Shackle’ giving rise to an uncontrollable torrent of litigation. It is
(1976) 9 CILSA 139; Cheryl Loots ‘Locus Standi to Claim well, however, to bear in mind a remark made by Mr.
Relief in Enforcement of Legislation’ (1987) 104 SALJ Justice Kirby, President of the New South Wales Court
131; Tobias van Reenen ‘Locus Standi in South African of Appeal, in the course of an address at the Tenth Anni-
Environmental Law: A Reappraisal in International and versary Conference of the Legal Resources Centre,
Comparative Perspective’ 1995 (2) SAJELP; and com- namely that it may sometimes be necessary to open the
pare Bamford v Minister of Community Development and floodgates in order to irrigate the arid ground below them.
State Auxiliary Services 1981 (3) SA 1054 (C) at 1060A. I am not persuaded by the argument that to afford locus
standi to a body such as first applicant in circumstances
I am well aware that the English law relating to locus such as these would be to open the floodgates to a tor-
standi has developed very differently to the South Afri- rent of frivolous or vexatious litigation against the State
can law in this regard. (As to which see, in particular, by cranks or busybodies. Neither am I persuaded, given
Baxter Administrative Law at 668-9; Cheryl Loots (op the exorbitant costs of Supreme Court litigation, that
cit).) Nevertheless the English cases are instructive and should the law be so adapted cranks and busybodies
it is interesting to note that the requirement in English would indeed flood the courts with vexatious or frivo-
law of ‘sufficient interest’ has been interpreted as being lous applications against the State. Should they be
merely a means of protection against ‘busy-bodies, cranks tempted to do so, I have no doubt that an appropriate
and other mischief-makers’. R v Inland Revenue Com- order of costs would soon inhibit their litigious ardour.
missioners: Ex parte National Federation of Self-Em-
ployed and Small Businesses Ltd [1982] AC 617 at 653G- In any event, whilst cranks and busybodies who attempt
H. In the same case at 644C Lord Diplock stated that to abuse legal process do no doubt exist, I am of the view
there would be ‘a grave lacuna in our system of law if a that lawyers are sometimes unduly apprehensive and pes-
pressure group ... or even a single public-spirited tax- simistic about the strength of their numbers. The med-
payer were prevented by outdated technical rules of lo- dlesome crank and busybody with no legal interest in a
cus standi from bringing the matter to the attention of matter whatsoever, mischievously intent on gaining ac-
the court to vindicate the rule of law and get the unlaw- cess to the court in order to satisfy some personal ca-
ful conduct stopped’. price or obsession, is, in my view, as has been remarked
elsewhere, more often a spectral figure than a reality.
In R v Inspectorate of Pollution and Another, Ex parte
Greenpeace Ltd (No 2) [1994] 4 All ER 329 (QB) the Twenty-one years have passed since Professor Van
Court upheld the locus standi of the Greenpeace Organi- Niekerk’s clarion call for an adaptation of the law relat-
sation ing to locus standi in environmental matters. It may well
be that the submissions made by him have come of age
‘who, with its particular experience in environmental and that the time has arrived for a re-examination of the
matters, its access to experts in the relevant realms of common law rules of standing in environmental matters
science and technology (not to mention the law), is able involving the State and for an adaptation of such rules to
to mount a carefully selected, focused, relevant and well- meet the ever-changing needs of society. Compare M M
argued challenge’. Corbett ‘Aspects of the Role of Policy in the Evolution
of our Common Law’ (1987) 104.SALJ 52
(At 350h.)
The application for a mandamus against first respondent
At 350e-f, Otton J stated that if he were to deny standing
to Greenpeace, As will have been seen from the above exposition of the
facts, the crisp defence raised by first respondent is that,
‘those it represents might not have an effective way to in view of the fact that the Task Group was, to appli-
bring the issues before the court. There would have to be cants’ knowledge, addressing the very issues raised by
an application either by an individual employee ... or a this application and that action has in fact been taken by
near neighbour. In this case it is unlikely that either would first respondent in regard to these issues, the application
be able to command the expertise which is at the dis- is unnecessary and amounts to an abuse of the process
posal of Greenpeace. Consequently, less well-informed of Court.
challenge might be mounted which would stretch un-
necessarily the court’s resources and which would not The Court has a general inherent power to set aside pro-
afford the court the assistance it requires in order to do ceedings on the ground that they are frivolous and/or
justice between the parties.’ vexatious and that they amount to an abuse of the proc-
ess of the Court. In Sher and Others v Sadowitz 1970 (1)
One of the principal objections often raised against the SA 193 (C) Corbett J (as he then was) reiterated that it is
adoption of a more flexible approach to the problem of clear that the power is one that should be sparingly exer-
98
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
cised and only in very exceptional cases, and that the owners of 20 seaside residential sites on State land close
Court must be satisfied, before setting aside such a pro- to the high water mark near Manteku Store in the
ceeding, that it is as a matter of certainty obviously un- Mtambelala Administrative Area, Lusikisiki district, to
sustainable. (At 195C-D.) the Minister of Land Affairs; Eastern Cape Agriculture
and Conservation and Environmental Affairs and Tour-
It appears from the minutes of the first meeting of the ism to determine support for initiative.’ (My emphasis.)
Task Group on 14 August 1995 that the recommendation
for the establishment thereof was contained in a letter from What exactly constituted ‘political support’ and why such
first respondent to third respondent. In these circumstances ‘political support’ had to be determined before action
it is hardly surprising that applicants knew nothing thereof could be taken to stop the blatantly illegal degradation
until after its formation. What is relevant, however, is that of the coastal conservation zone of the Wild Coast was
fourth applicant was invited to and did attend the meeting not explained, nor has it since been explained by Mr.
of the Task Group as a representative of the Cottage Own- Botha, who participated in the meeting of the Task Group.
ers Association of which third applicant is a member and It is difficult to understand why, in the face of overwhelm-
that the applicants were therefore aware of the existence ing evidence of illegal land practice uses, it was consid-
of the Task Group prior to the institution of these pro- ered necessary to determine ‘political support’ for ac-
ceedings. Applicants aver that the Task Group’s role was tion to be taken to put a stop thereto and why there should
advisory only and that at no time did the Group even sug- have been such a remarkable and disturbing reluctance
gest that decisive action be taken against illegal land prac- immediately to invoke the provisions of s 39 of the De-
tice users. They aver further that the fact that the Task cree. It is telling that nowhere in his affidavit does Mr.
Group met only once a month is indicative of the ineffec- Botha state why it was necessary to adopt such a ‘kid
tive and totally inappropriate manner in which the urgent glove’ approach, nor does he state that first respondent
problem was being addressed. In my view, far from these was logistically unable to enforce the provisions of s 39.
proceedings being an abuse of the process of the Court, a
perusal of the minutes of the meeting of the Task Group Priority ‘number 4’ in terms of the ‘list of actions’ was
on 14 August 1995 bears out applicants’ averments. It ap- stated as being to
pears therefrom that the main function of the Task Group
was ‘to advise the various Ministers on the appropriate ‘inform relevant authorities of the illegal activities to stop
steps to be taken regarding problems in the coastal ar- of the issuing of certificates or identification of sites’ (sic).
eas’. (At para 9.3.) That the main function was indeed
advisory is borne out by the minutes themselves. At that The action required in respect thereof was stated as
meeting fourth applicant specifically stated that, whilst follows:
there was a need to rationalise legislation, it was essential
that urgent action be taken against offenders immediately ‘Inform via Minister of Environmental Affairs and Tour-
so as to prevent the proliferation of illegal cottages esti- ism the Eastern Cape Premier (with respect to permis-
mated as comprising up to 300 units. He pointed out that sion of our traditional leaders); Eastern Cape Minister
to wait until the legislation had been rationalised would of Agriculture and Conservation (in respect of actions
be disastrous as by then valuable coastal resources would by Agriculture Development Officers); Department of
have been irreparably damaged. His speech elicited an Land Affairs (in respect of former Land Tenure Depart-
expression of appreciation from the chairman. A ‘list of ment and Surveyor General); Department of Justice (in
actions’ was determined at the conclusion of the meeting, respect of magistrates) of current problems and request
in which every action to be taken was accorded a priority that all illegal activities perpetuated in the erection of
ranging from 1 to 5, as well as medium term. Not surpris- illegal cottages and alienation of land be ceased.’ (My
ingly, the issue of a press release informing the public of emphasis.)
the establishment of the Task Group and of its activities
was accorded priority ‘number one’. Despite fourth ap- In these circumstances, where ‘political support’ for le-
plicant’s impassioned plea to take action and not to wait gal action had to be first determined and where persons
for the rationalisation of legislation, such rationalisation illegally allocating sites, sometimes in return for little
was accorded priority ‘number two’. Only then was pri- more than a bottle of brandy, were to be ‘requested’ to
ority ‘number three’ referred to, in the following some- stop doing so, applicants’ averred sense of frustration at
what startling terms: the lack of any concrete action in terms of s 39 of the
Decree becomes almost palpable. The overwhelming
‘(D)etermine political support from proposed action sense to be gained from a reading of the minutes of the
against owners of cottages erected illegally.’ Task Group is that of the slow and inexorable grinding
of wheels across a bureaucratic landscape, regardless of
In this regard the action to be taken was stated to be: the urgency of the situation. My above comments should
not be misconstrued. The Task Group may well be per-
‘(P)resent proposed “test case” legal action against the forming excellent work in regard to other matters, such
99
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
as the eventual rationalisation of applicable legislation. In my view, however, Mr. Moerane correctly submitted
My comments relate only to its performance in relation that the relevant section of the Constitution Act in this
to the enforcement of Decree 9. When it is borne in mind regard was s 229, which provides:
that the Task Group is a non-statutory advisory body of
uncertain nature and duration, its difficulties in this re- Continuation of existing laws
gard are perhaps understandable. The fact remains, how-
ever, that first respondent’s opposition to this applica- Subject to this Constitution, all laws which immediately
tion is based largely upon the existence of the Task Group before the commencement of this Constitution were in
and its actions and these actions have, in my view, fallen force in any area which forms part of the national terri-
woefully short of establishing that the provisions of s tory, shall continue in force in such area, subject to any
39(2) of the Decree were and are being enforced by first repeal or amendment of such laws by a competent au-
respondent. thority.’
It is also clear from the papers that it was only after the ‘Section 229 provides a constitutional foundation for the
institution of this application that first respondent took continuation of the “old laws” after the coming into force
the action referred to by Mr. Botha in his affidavit. In the of the Constitution ... the continuity given by s 229 is
light of the minutes of the Task Group the inference is applicable only to areas in which such laws were in force
inescapable that the launching of the application galva- prior to the commencement of the Constitution.’
nised first respondent into such action as it eventually
took. The action taken by first respondent does not, how- (Per Chaskalson P in Executive Council, Western Cape
ever, in any way address all the abuses raised by appli- Legislature, and Others v President of the Republic of
cants in their papers. South Africa and Others 1995 (4) SA 877 (CC) (1995
(10) BCLR 1289) at para [87].)
I am satisfied in all the circumstances that applicants were
and are entitled to approach the Court for relief. In grant- Clearly, therefore, until such time as the Environment
ing relief to the applicants the Court is not crossing the Conservation Act 73 of 1989 is applied by a law of a
boundary between what is administration, whether good competent authority to the whole of the national terri-
or bad, and what is an unlawful failure to perform a statu- tory, it shall continue to apply only to that part of the
tory duty by the body or person charged with perform- national territory in which it was in force immediately
ance of that duty. before the commencement of the Constitution. (Com-
pare s 232 of the Constitution.)
In my view, however, the relief sought by applicants in
para 1 (a) of the notice of motion is couched in terms that Section 235(6), read with s 126(3), relied upon by Mr
are much too wide and vague. I am therefore not prepared Gauntlett, deals with the question of executive authority
to grant an order in terms of para 1 (a) of the notice of and does not purport to extend the territorial application
motion. Applicants’ case was premised throughout on land of any laws which immediately prior to the commence-
practice uses in contravention of s 39 of the Decree. In ment of the Constitution were in force in any particular
my view, therefore, applicants are entitled only to an or- area forming part of the national territory.
der in terms of para 1 (b), namely that first respondent
enforce the provisions of s 39(2) of the Decree. Such an The application for a declarator in terms of para 2 of the
order is easily capable of compliance and, as I have stated notice of motion must accordingly fail. I furthermore
above, nowhere has first respondent averred that it lacks decline Mr. Gauntlett’s invitation to grant a declarator
the logistical means to enforce those provisions. incorporating certain submissions made by Mr. Botha
during the course of his presentation at the first meeting
The application for a declarator of the Task Group on 14 August 1995. This was not the
relief sought by applicants and neither first respondent,
This aspect of the case can, in my view, be very shortly nor Mr. Botha in particular, were required to apply their
disposed of. It is common cause that before 27 April 1994 minds thereto.
Decree 9 applied within the area which comprised the
then Republic of Transkei and that the Environment Con- In these circumstances the relief sought by applicants in
servation Act 73 of 1989 applied within the area which terms of paras 2 and 3 of the notice of motion must be
then comprised the Republic of South Africa. Mr refused.
Gauntlett submitted, with specific reference to s 235(6)
read with s 126(3) of the Constitution of the Republic of The interdict sought against fourth to seventh respondents
South Africa Act 200 of 1993, that the Environment Con-
servation Act 73 of 1989 now applied to and was en- As I have stated above, these respondents, despite hav-
forceable in the territory that formerly constituted the ing entered an appearance to oppose the application, filed
Republic of Transkei. no papers and did not appear at the hearing. Accordingly
100
WILDLIFE SOCIETY OF SOUTHERN AFRICA & O THERS V M INISTER OF E NVIRONMENTAL AFFAIRS & T OURISM & O THERS
they have not denied applicants’ allegations concerning Poyser advising him that an application would be made
the wrongful and unlawful allocation by them of sites to for the postponement of the matter on 18 April 1996. On
certain persons. This being so, applicants are entitled to 17 April 1996 Mr. Poyser replied, stating that the appli-
an order against them in terms of para 4 of the notice of cation would proceed. On 18 April 1996 a substantive
motion. application for postponement was filed by Mr. Jika after
10:00 am. The lateness of the application, which con-
Costs tained factual averments which required to be answered,
made a postponement unavoidable. In my view the fact
It is clear that the primary focus of the application was that Mr. Moerane was not available to argue the applica-
the interdictory relief sought against the various respond- tion on 18 April 1996 would not normally have consti-
ents in differing respects. The application for a declarator tuted a valid ground on which to seek a postponement.
constituted a relatively insubstantial component of the Mr. Jika was also dilatory in failing to launch the sub-
application as a whole. In these circumstances, although stantive application for a postponement on failing to re-
applicants have failed in their application for a declarator, ceiving a positive reply to his request therefore on 9 April
they have nevertheless achieved substantial success in 1996. On the other hand, in requesting the permission of
the application as a whole and there is accordingly no the Judge President for the hearing of the matter during
reason why they should be deprived of any part of their the Court recess, the applicants were seeking an indul-
costs against first respondent. Such costs will be paid by gence to suit the convenience of themselves and their
first respondent jointly and severally with second and counsel. In these circumstances applicants should, in my
third respondents, who in terms of their agreement with view, have consulted with respondents concerning the
applicants agreed to pay such costs. Counsel were agreed suitability of the proposed date of hearing.
that the costs of two counsel should be allowed.
I am accordingly of the view that the most appropriate
Insofar as fourth to seventh respondents are concerned, and fair order would be that each party pay their own
no order for costs was sought against them nor, in my costs in respect of the hearing on 18 April 1996.
view, would any such order be appropriate in the cir-
cumstances of this case. The order
It remains, however, to deal with the question of the The following order is therefore made:
wasted costs incurred in consequence of the postpone-
ment of the application on 18 April 1996, which costs 1. That the first respondent be and is hereby ordered
were reserved for later decision. It appears from the pa- forthwith to take such steps and to do such things as
pers that the date of 18 April 1996, which fell during the may be necessary to enforce the provisions of s 39(2)
Court recess, was specifically allocated by the Registrar of the Decree 9 (Environment Conservation) prom-
at applicants’ request after consultation with the Judge ulgated by the former Government of Transkei on
President. A notice of set down of the matter was then 24 July 1992.
served on the Government Attorney by applicants’ attor-
ney on 3 April 1996. Mr. Jika, the Government Attorney, 2. That, save to the extent that they may be permitted
states in an affidavit that the matter was set down for to in terms of any law, the fourth, fifth, sixth and
hearing on that date without any prior consultation with seventh respondents be and they are hereby restrained
himself or first respondent. On receipt of the notice of and interdicted from granting or purporting to grant
set down he immediately communicated with his coun- any rights in land which formed part of the territory
sel, only to be advised that they would not be available that formerly constituted the Republic of Transkei.
as senior counsel was out of the country. He then ad-
vised applicants’ attorney of record, Mr. Poyser, that the 3. That first respondent is ordered to pay the costs of
date was not suitable. According to Mr. Poyser, this let- this application jointly and severally with second and
ter only came to his attention on 9 April 1996 after Easter third respondents, the one paying the others to be
weekend. Mr. Jika telephoned Mr. Poyser on 9 April 1996 absolved. Such costs shall exclude the reserved costs
and reiterated his concern that the matter had been set of the hearing on 18 April 1996, in respect of which
down during recess without prior consultation with him. each party shall bear their own costs.
According to Mr. Poyser, he advised Mr. Jika to liaise
directly with applicants’ instructing attorneys so as to Applicants’ Attorneys: Ridl-Glavovic, Westville; John C
avoid unnecessary delays. Blakeway & Leppan, Inc, Umtata. First, Second and
Third Respondents’ Attorney: Government Attorney,
Mr. Jika is silent as to whether or not he did so, but ac- Umtata.
cordingly to him on 16 April 1996 he again wrote to Mr.
101
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
MINISTER OF HEALTH AND WELFARE
v.
WOODCARB (PTY) LTD AND ANOTHER
NATAL PROVINCIAL DIVISION
HURT J 1995 March 29; December 15 Case No. 1773/94
Environmental law - Pollution - Atmospheric pollution - without a current registration certificate in contravention
Carrying on ‘scheduled process’ within a controlled area of s 9(1). The Minister is not limited to the specific crimi-
in contravention of s.9(1) of Atmospheric Pollution Pre- nal penalties provided for contraventions of s 9. The Act
vention Act 45 of 1965 - Remedies - Remedy of inter- provides no specific ‘remedies’ which the Minister or
dict available to enforce provisions of Act - Minister of any other interested party can invoke to stop a person
Health and Welfare not limited to remedy of criminal from contravening it. In such circumstances the princi-
prosecution. ple that the Act is exclusive as to what may be done to
enforce its provisions does not arise. (At 161D/E-F, read
Environmental law - Pollution - Atmospheric pollution - with 159H-1, paraphrased.
Carrying on
The dictum in Johannesburg City Council v Knoetze and
‘scheduled process’ within a controlled area in contra- Sons 1969 (2) SA 148 (W) at 154F-155B approved and
vention of s.9(1) of Atmospheric Pollution Prevention applied.
Act. 45 of 1965 - Remedies - Interdict - Locus standi -
Minister of Health and Welfare responsible for proper The Minister of Health and Welfare is responsible for
administration and enforcement of Act - Purpose of pro- the proper administration and enforcement of the Atmos-
visions of ss 9-13 of Act being to ‘control’ installation pheric Pollution Prevention Act. The whole purpose of
and use of ‘scheduled processes’ throughout Republic - the legislation, and particularly of the provisions of ss 9-
Minister needing remedy of interdict for that purpose - 13 of the Act, is to ‘control’ the installation and use of
Minister accordingly having locus standi to apply for scheduled processes throughout the Republic, seeing that
such interdict - Where one of respondent’s neighbours the whole of the Republic has been designated as a ‘con-
applicants in such proceedings, Minister also having lo- trolled area’. It cannot, in these circumstances, be con-
cus standi to apply for interdict restraining conduct in- tended that the Minister does not need the remedy of
fringing right to ‘an environment which is not detrimen- injunction to enable her to control these processes effec-
tal to their health and well-being’ enshrined in s 29 of tively and thereby discharge her duties under the Act.
Constitution of the Republic of South Africa Act 200 of Accordingly the Minister has locus standi to apply for
1993. an interdict to restrain conduct which constitute a con-
travention of s 9(1) of the Act. (At 1611-162A.)
Environmental law - Pollution - Atmospheric pollution -
Carrying on Conduct which is unlawful in the light of s 9 of the At-
mospheric Pollution Prevention Act (in casu the genera-
‘scheduled process’ within a controlled area in contra- tion of smoke producing noxious or offensive gases at
vention of s 9(1) of Atmospheric Pollution Prevention the respondents’ sawmill by means of a scheduled proc-
Act 45 of 1965 - Generation of smoke in such circum- ess) is also ‘an infringement of the rights of the respond-
stances an infringement of neighbours’ right to ‘an envi- ents’ neighbours to an environment which is not detri-
ronment which is not detrimental to their health and well- mental to their health and well-being’, enshrined for them
being’ enshrined in s 29 of Constitution of the Republic in s 29 of the Constitution of the Republic of South Af-
of South Africa Act 200 of 1993. rica Act 200 of 1993. Insofar as none of those neigh-
bours are applicants for an interdict straining such in-
The Atmospheric Pollution Prevention Act 45 of 1965 fringement, the Minister of Health and welfare can rely
does authorize the Minister of Health and Welfare to on the provisions of s 7(4)(b)(iv) of the Constitution for
apply for an interdict to enforce the provisions of s 9(1) locus standi to apply to Court for an interdictre to re-
thereof and to restrain conduct which constitutes the car- strain conduct which infringes the rights under s 29 of
rying on of a ‘scheduled process’ within a controlled area the neighbours of such respondent. (At 164E-G.)
102
MINISTER OF HEALTH & W ELFARE V W OODCARB (PTY) LTD & A NOTHER 1996 (3) SA 155 (S OUTH AFRICA)
The following decided cases were cited in the judgement on the respondent’s farm. Part of the operation of the saw-
of the Court: mill involved disposing of the large quantity of ‘sawdust
and wood chips generated by the sawing and other treat-
Johannesburg City Council v Knoetze and Sons 1969 ment processes. The volume of this material apparently
(2) SA 148 (W) exceeded, by far, any market demand for it, and, because
it is not easily degradable into compost, the only option
Madrassa Anjuman Islamia v Johannesburg Municipal- open to the respondent for its disposal was to burn it. With
ity 1917 AD 718 Plascon-Evans Paints Ltd. v Van this purpose in mind, the respondent installed a piece of
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). equipment called a ‘Rheese burner’ (I am opting for the
spelling used by the respondent) on its property, and to
The following statutes were considered by the Court: this unit the respondent consigned all the sawdust and
other non-usable or unsellable by-products of the
The Atmospheric Pollution Prevention Act 45 of 1965, sawmilling operation. It is this burning process which has
ss 9, 10, 11, 12 and 13; see Juta’s Statutes of South Af- given rise to this application and it is necessary to set out
rica 1995 vol 3 at 1-270-1-271. briefly the history of the development of the dispute.
The Constitution of the Republic of South Africa Act In 1968 the then Minister of Health had, in terms of the
200 of 1993, ss 7(4)(b)(iv) and 29: see Juta’s Statutes of powers vested in him by s 8 of the Atmospheric Pollu-
South Africa 1995 vol 5 at 1-211 and 1-213. tion Prevention Act 45 of 1965 (to which I shall herein-
after refer as ‘the Act’), declared the whole of the Re-
Application for an interdict. The facts appear from the public of South Africa to be a ‘controlled area’. Section
reasons for judgement. 9 (1) of the Act precludes any person from carrying on a
‘scheduled process’ in such a controlled area unless he
C.J. Hartzenberg SC (with him M.G. Roberts) for the (or she or it) is the holder of a current registration certifi-
applicant. cate authorizing him to carry on that process.1
D.A. Gordon SC for the respondents. A scheduled process is defined as ‘any work or process
specified in the Second Schedule’. Item 67 of the Sec-
Cur adv vult. ond Schedule reads:
Postea (December 15). ‘Wood-burning and wood-drying processes: That is to
say, processes in which wood is burned or subjected to
Hurt J: The second respondent is the current owner of heat in such a manner as to give rise to noxious or offen-
an immovable property described as ‘Sub I Versameling sive gases.’
No. 15759’. I say ‘current owner’, because the first re-
spondent was the owner of the property until 1993, when ‘Noxious or offensive gas’ is defined in the definition
the respondents concluded an agreement in terms of section of the Act (s 1(1)) as a number of specified groups
which the first respondent sold the property to the sec- of compounds in the gaseous phase. I shall deal at a later
ond respondent which then ‘employed’ the first respond- stage with those that are relevant to the issues in this
ent to run a sawmilling business on the property. That application,
business had hitherto (since 1991) been owned and op-
erated by the first respondent. Initially this application In December 1991 the respondent submitted a written
was brought against the first respondent only but when application, in terms of s 10(1) of the Act, for the regis-
the first respondent indicated, in the answering affida- tration certificate which would authorize the operation
vit, that it was no longer the owner of the immovable of the Rheese burner. There was a great deal of debate
property, an application was made by the applicant to and much correspondence was exchanged between the
join the second respondent. When the matter was argued, respondent and the Department of Health concerning the
Mr. Gordon, who appeared for the respondents, made no issue of the certificate, but, on 15 January 1993, a provi-
point of the distinction between ownership of the prop- sional certificate was issued, valid for a period of eight
erty and conduct of the business and I will consequently months. The certificate authorized the burning of saw-
refer to the first and second respondents collectively for dust, wood chips and planks, subject, inter alia, to the
the purposes of this judgement as ‘the respondent’. following conditions:
In the latter part of 1991 the respondent established the 1...
sawmilling plant on the property referred to above. The
property is situated in an almost exclusively agricultural 2. An efficient incinerator will be used for the construc-
area but, as I understand the papers, the timber which was tion of wood waste. Wood will be properly dried
to be handled in the sawmill was not (or was not all) grown before being fed into the appliance.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
5. The incinerator will only be started up after break- the effect on neighbouring premises, you are hereby no-
up of any inversion condition and will not be oper- tified that, in terms of s 10 (3) of the Act, a registration
ated outside normal daytime working hours. certificate shall not be issued and you must therefore
immediately stop the incineration of wood sawdust, bark
I may mention for the sake of completeness that part of or any other wood products, until such time as you have
the difficulties which caused the delay between the re- installed a replacement unit which has been approved
spondent’s application for the registration certificate and and registered in terms of the Act.’
the grant of the provisional one was that the Department
of Health had issued a directive, in March 1992, to the This was met by a protest from the respondent to the
effect that conical burners, of which the Rheese burner effect that other operators of Rheese burners were being
is a species, should be phased out as combustion equip- given more time than was the respondent to phase out
ment for wood waste over a three-year period because their equipment and that, considering that the respond-
they could not be operated so as to comply with the guide- ent employed approximately 500 persons, any attempt
lines limiting the generation of smoke and fly-ash. When by the Department to shut the sawmill down would cause
the respondent was informed of this policy, it undertook, ‘major political and social problems’. There was an ex-
through its attorneys, to phase out the Rheese burner change of further correspondence, but in June 1994, the
within the next three years, but the Department indicated respondent was informed that litigation aimed at prevent-
that the phasing out policy only applied to holders of ing it from continuing with its use of the Rheese burner
existing certificates and not to applicants who had not was pending. The application was, in fact, served on the
yet been granted certificates. After some debate, the re- respondent on 6 June 1944. The applicant put up a
spondent was informed that the provisional certificate number of affidavits by people who own or occupy prop-
would be issued to it on the understanding that positive erties in the neighbourhood of the respondent’s property.
steps would be taken to replace the Rheese burner with Without exception, these deponents stated that the Rheese
an approved appliance and that design of such appliance burner has continually generated such quantities of smoke
should commence immediately. as to adversely affect their enjoyment of their rights of
occupation and use of their properties. Various photo-
During 1992 and 1993 the Department of Health received graphs of the Rheese burner in action have also been put
a series of complaints from occupiers of property in the before me, as also has been a transcript of a meeting
neighbourhood of the respondent’s property about the between the directors of the respondent and a number of
emission of smoke from the respondent’s works. Moreo- the farmers from the area where, to put it at its mildest,
ver, the period of eight months for which the provisional acrimony ran high.
registration certificate was granted expired and the ap-
plicant’s representative, Lloyd, declined a request to ex- In general, the deponent for the respondent, Mr. Griffith,
tend the period of the provisional certificate. In Febru- does not challenge the fact that smoke is emitted from
ary 1994 Mr. G.C. Coetzee, an inspector in the Depart- time to time, though he says that it is not emitted with a
ment of Health, and a Mr. Potgieter, also employed in frequency, or in quantities, which justify the attitude of
the Department, visited the respondent’s premises for the those who have objected to the operation of the mill on
purpose of inspecting the combustion equipment and the the basis that the emissions from the Rheese burner con-
burning process. They had a discussion with Mr. Griffith stitute a ‘nuisance’. The basis upon which the respond-
and Mr. Hunt, directors of the respondent, in the course ent opposes the application is, firstly, that the applicant
of which the problems of smoke emission and the steps has no locus standi to bring it; secondly, that it is not
which the respondent had taken, and was taking, to cure proven, on the affidavits as they stand, that the Rheese
it, predominated. Inter alia, the respondent’s directors burner emits ‘noxious gas’ and, accordingly, that the re-
informed the applicant’s representatives that it was the spondent is acting unlawfully by using it; and, thirdly,
respondent’s intention to replace the Rheese burner with that the respondent has taken all the steps which it is
a system incorporating a Dutch oven as the combustion obliged to take in order to reduce the degree of emission
equipment by the end of 1995. On 28 February 1994 the and will, in any event, be replacing the Rheese burner
respondent wrote a letter to the Department, confirming ‘by October, 1995’.
these discussions and the intention to replace the Rheese
burner ‘as soon as possible and in any event not later Locus standi
than 31 December 1995’. Mr. Coetzee replied to this let-
ter, stating that the respondent had been requested to The respondent’s contention is that the Act does not au-
submit to the Department a programme outlining its plans thorize the applicant to take civil action to enforce its
to reduce smoke emission and to replace the offending provisions and, further, that it is not competent for the
equipment and that no such programme had been forth- applicant or for the Court to enforce those provisions by
coming in the respondent’s letter. He went on to say that: way of the grant of an interdict. Elaborating on this theme,
Mr. Gordon stated that the Act provides specific crimi-
‘Due to the serious air pollution caused by the plant and nal penalties for contraventions of s 9, and that these
104
MINISTER OF HEALTH & W ELFARE V W OODCARB (PTY) LTD & A NOTHER 1996 (3) SA 155 (S OUTH AFRICA)
were contemplated by the legislator as conferring upon vehicles in question form using them until the arrear fees
the applicant the powers necessary to enable her to take had been paid and the vehicles properly registered. The
steps against infringers. Mr. Hartzenberg’s answer to this ordinance in question contained a provision making it
contention is that the applicant, as the person upon whom an offence to operate a vehicle on a public road unless it
responsibility for the administration and application of was duly licensed. Trollip J quoted the dictum of Solo-
the Act devolves, must implicitly be vested with locus mon JA in the Madrassa case supra at 725, to the fol-
standi to seek the assistance of this Court. He submitted lowing effect:
that, in many cases, the applicant would need to take
swift and effective action to prevent conduct which was “To exclude the right of a Court to interfere by way of
resulting in the pollution of the atmosphere, and that the interdict, where special remedies are provided by stat-
comparatively cumbersome and slow procedure of crimi- ute, might in many instances result in depriving an in-
nal prosecution might be wholly inappropriate to achieve jured person of the only effective remedy that he has,
the necessary remedy. Moreover, he pointed out that the and it would require a strong case to justify the conclu-
criminal sanction provided by the Act is, in the case of a sion that such was the intention of the Legislature.’
first offence, a fine not exceeding R500 and in the case
of a second and subsequent convictions, a fine not ex- Trollip J went on to say (at 154F):
ceeding R2,000. Such penalties, he said, might frequently
pale into insignificance against the profits which an un- ‘It is true that the qualification - unless the statute other-
scrupulous industrialist might be able to reap by keep- wise provides - is not incorporated in the well-known
ing the cost of controlling pollution from his works to a rule laid down by Solomon J (as he then was) in Patz v
minimum. Prevention, too, is invariably better than cure, Green & Co. 1907 TS 427 at 433. That decision has on
he submitted, and the Act has no procedure whereby the that account been criticized in certain decisions ... But
applicant can take positive steps to preclude an infringer with respect I think that in Patz v Greene & Co. the Court
of its provisions from continuing with his conduct, not- was satisfied that the statute in question had not expressly
withstanding that it constitutes a criminal offence. or by necessary implication excluded the civil remedy
of interdict (see at 434-5), and it was therefore primarily
In this connection, Mr. Hartzenberg referred me to the concerned with the locus standi of the applicant to apply
judgement of Trollip J in the case of Johannesburg City for the interdict (see the argument at 427). Consequently,
Council v Knoetze and Sons 1969 (2) SA 148 (W) at the rule there laid down accepted, I think, that the right
150-55. In that judgement Trollip J (as he then was) dealt, of interdict was available, and it was directed towards
firstly, with the question of whether the Supreme Court defining the person or class of persons who had locus
had jurisdiction to grant an interdict to restrain the per- standi to claim its enforcement. Thus, in the Madrassa
formance of conduct which, of itself, constitutes a statu- case, at 726, the same learned Judge who had announced
tory offence, and, secondly, with the question of who the rule applied it to determine the locus standi of the
has locus standi to move the Court for an interdict where applicant ... In my view, therefore, Patz v Greene Ltd.
the Court has jurisdiction to grant one. The learned Judge does not add to or conflict with the rule quoted above
referred firstly to the general principle formulated by from ... the Madrassa case. The case will be referred to
Kotze AJA in Madrassa Anjuman Islamia v Johannes- again later on the question of the present applicant’s lo-
burg Municipality 1917 AD 718 at 727, to the following cus standi.
effect:
Now the ordinance does not exclude, expressly or by
‘If it be clear from the language of a statute that the Leg- necessary implication, the remedy of interdict to enforce
islature, in creating an obligation, has confined the party observance of s 4 (1). That remedy, as pointed out above,
complaining of its non-performance, or suffering from is applicable to future or continuing breaches; the statu-
its breach, to a particular remedy, such party is restricted tory remedy of prosecution and punishment under s 4(2)
thereto and has no further legal remedy; otherwise the relates to past breaches; and the two can therefore co-
remedy provided by the statute will be cumulative.’ exist without any conflict. Consequently the reasoning
above for excluding the civil remedy for recovering ar-
After considering the ambit of this general principle and rear fees and penalties does not apply. Hence, in my view,
its application to the statute with which he was dealing future of continuing breaches of s.4(1) can be restrained
(which prescribed the payment of certain registration and by interdict.’
licence fees for commercial vehicles), Trollip J concluded
that the remedies afforded the local authority by the or- In my respectful view, this reasoning applies with equal
dinance were such as to negate any suggestion that the and absolute force to the provisions of the Act in this
local authority could sue civilly to recover unpaid fees. case. In fact it may be said to apply a fortiori because the
The learned Judge then proceeded to consider whether Act contains no specific ‘remedies’ which the applicant
the statute also impliedly precluded the local authority or any other interested party could invoke to stop a per-
from seeking an interdict to prevent the owner of the son from contravening it. And in those circumstances
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
the principle that the Act is exclusive as to what may be gard Room Hire Co (Pty) Ltd v Jeppe Street Mansions
done to enforce its provisions does not arise. (Pty) Ltd. 1949 (3) SA 1155 (T) at 1163-5; Da Mata v
Otto NO 1972 (3) SA 858 (A) at 882 D-H). If in such a
On the question of whether the City Council had locus case the respondent has not availed himself of his right
standi to seek an interdict, Trollip J held that, because to apply for the deponents concerned to be called for
the ordinance contained the provision prohibiting per- cross-examination under Rule 6(5)(g) of the Uniform
sons from operating unlicensed or unregistered vehicles Rules of Court ... and the Court is satisfied as to the in-
on public roads, and because, in terms of other sections herent credibility of the applicant’s factual averment, it
of the ordinance, a portion of licence fees paid by per- may proceed on the basis of the correctness thereof and
sons residing within the area of a local authority accrue include this fact among those upon which it determines
to the local authority, the local authority in question had whether the applicant is entitled to the final relief which
a sufficient ‘partial interest’ to vest it with locus standi. I he seeks (see e.g. Rikhoto v East Rand Administration
think it is clear from the judgement that the learned Judge Board and Another 1983 (4) SA 278 (W) at 283 E-H).
did not consider the mere prohibition against operation Moreover, there may be exceptions to this general rule,
of vehicles without compliance with the duty to register as, for example, where the allegations or denials of the
them an insufficient basis upon which to find that the respondent are so far-fetched or clearly untenable that
local authority could interdict their unlawful operation. the Court is justified in rejecting them merely on the pa-
pers (see the remarks of Botha AJA in the Associated
In this case the Act contains a similar prohibitory provi- South African Bakeries case supra at 924A).’
sion relating to the operation of an unregistered sched-
uled process. But it contains no provision for payment Now, apart from the evidence of a number of the appli-
of any fee for the purpose of registration. Does that af- cant’s neighbours to the effect that the Rheese burner
fect the applicant’s power to use interdict proceedings to regularly belched large quantities of smoke over the sur-
restrain contraventions? I think not. As contended by Mr. rounding countryside (which assertions are amply sup-
Hartzenberg, the applicant is responsible for the proper ported by unchallenged photographic evidence), the ap-
administration and enforcement of the Act. The whole plicant has also put up affidavits by Dr. N. Boegman MSc.
purpose of the legislation, and particularly of the provi- (Chemistry) (Stellenbosch), BCom (SA), PhD (Environ-
sions of ss 9-13 of the Act, is to ‘control’ the installation mental Studies) Wits); Mr. P du Toit BSc. (Eng), Bluris
and use of scheduled processes throughout the Repub- (UP); Mr. W.A. Potgieter BSc. (Chemistry and Physics),
lic, seeing that the whole of the Republic has been des- BSc. (Hons) Biochemistry), Diploma in Control and Ad-
ignated as a ‘controlled area’. There is, in these circum- ministration of Air Pollution (University of Southern
stances no basis for a contention that the applicant does California); and Mr. G.C. Coetzee, BSc. Hons (Indus-
not need the remedy of injunction to enable her to con- trial Chemistry). Each of these deponents has observed
trol these processes effectively and thereby discharge her the Rheese burner in operation at various times when it
duties under the Act. has been generating smoke. Each of them deposed to
having visited the respondent’s works for this purpose,
Unlawfulness although some of the observations relied upon were made
from a short distance away from the works. Each of them
The second defence raised by the respondent is to the states unequivocally that the burner was being fed with
effect that it has not been established on the papers that wet (or at least undried) sawdust, chips and bark and
the operation of the Rheese burner constitutes a ‘sched- that no proper precautions were taken to control the rate
uled process’ as defined in item 67 of the Second Sched- of input of the material into the burner. The result of this
ule, read with the definition of ‘noxious or offensive type of operation, they all aver, is that incompleted com-
gases’ in the definition section. Mr. Gordon submitted bustion occurs because the material itself stifles the rate
(quite correctly, of course) that, this being an applica- at which air, and accordingly oxygen, can be fed to it to
tion on motion for final relief, and there being conflicts cause the combustion process to go to completion. Each
of fact on the affidavit evidence, the application falls to of them expresses the view that the Rheese burner is, in
be decided only on the averments of the respondent, taken any event, inherently incapable of burning this type of
together with those of the applicant which are admitted, material properly (i.e. without the generation into the at-
or not denied, by the respondent. (See Plascon-Evans mosphere of products of incomplete combustion, not-
Paints Ltd. v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA withstanding certain modifications which the respond-
623 (A) at 6634-5.) In the Plascon-Evans case, however, ent has attempted to make to it). While each of them was
Corbett JA (as he then was) stressed certain qualifica- particularly concerned with the question of whether the
tions to the general rule. He said (at 6341-635C): respondent had complied with the restrictions and con-
ditions contained in the provisional registration certifi-
‘In certain instances the denial by respondent of a fact cate, it is clear from their affidavits that each of them is
alleged by the applicant may not be such as to raise a satisfied that the process of burning the woodwaste is a
real, genuine or bona fide dispute of fact (see in this re- ‘scheduled process’ as contemplated under item 67 of
106
MINISTER OF HEALTH & W ELFARE V W OODCARB (PTY) LTD & A NOTHER 1996 (3) SA 155 (S OUTH AFRICA)
the Second Schedule. Mr. Du Toit says this specifically has BSc. Hons in chemistry) all state that it is a matter of
in para 10 of his affidavit. Moreover, the evidence which simple and common chemical knowledge that the incom-
they give about their discussions with the representatives plete combustion of wood products such as those in ques-
of the respondent over the period between January 1993 tion is inevitably, as a chemical law as it were, associ-
and June 1994 makes it absolutely clear that their con- ated with the generation of the compounds mentioned
tention was that the process used by the respondent ne- and Mr. Potgieter sets out a detailed explanation why
cessitated the holding by the respondent of a registration this is so. Although this detail is only set out in the re-
certificate. Dr. Boegman says, in paras 13 and 14 of his plying affidavits, I think, having regard to the attitude of
affidavit: the respondent before the application was moved, that
the applicant could justifiably have been under the im-
’13. My gemelde waarnemings was soos volg, mamlik: pression that the question of whether the operation of
the Rheese burner constituted a ‘scheduled process’ was
(a) Die Rees-verbrander her rook afgeskei war van tyd not really an issue. In any event it is clearly not suffi-
tot ryd gekleurd was. Die mate waartoe die rook cient for the respondent to content itself, in the circum-
gekleurd was, was sodaning dat van tyd tot tyd die stances of this case, with a mere challenge of the wit-
agtergrond agter die rook nie duidelik gesien kno nesses’ status to give the evidence which they have. The
word nie. In die digte gebiede van die rook kon die chemical aspects in issue are hardly intricate - at least
agtergrond glad nie gesien word nie. the respondent has not put up the evidence of any suit-
ably-qualified witness to say that they are - and I do not
(b) Dit was opmerklik dat van die rook teen die kante think that this type of unsubstantiated and unspecified
van die Rees-verbrander uitgeborrel het. challenge by the deponent for the respondent generates
a bona fide dispute which would warrant me ignoring
(c) Na my mening was dit ook duidelik dat ‘n redelike the evidence of these qualified witnesses.
konsentrasie van digte geel materiaal in die rook.
The result is that I take the view, on the evidence to which
(d) Tydens ‘n tydperk van sowat 10 minute wat ek die I can have regard for the purpose of considering whether
rook dopgehou het, was daar twee tydperke the applicant can be granted final relief on these papers,
waartydens swar geel rook uitgeborrel het elke that the applicant has established that the operation of
tydperk waarvan sowat drie minute geduur het. the Rheese burner by the respondent without a certifi-
cate of registration under s.9 of the Act is unlawful con-
14. Na my mening, stel die rook wat afgeskei word duct. It is not only unlawful in the light of s.9, but, in my
deur die Rees-verbrander wel skadelike of hinderlike view, the generation of smoke in these circumstances, in
gasse daar, soos omskryf in art 1 van die Wet en wel the teeth of the law, as it were, is an infringement of the
omdat soldanige rook onder andere verbindings van rights of the respondent’s neighbours to ‘an environment
koolwaterstowwe, fenole en organiese stikstof bevat.’ which is not detrimental to their health or well-being’,
enshrined for them in s. 29 of the Constitution of the
Mr. Griffith, the deponent for the respondent says, some- Republic of South Africa Act 200 of 1993. Insofar as
what tersely, in answer to these averments: none of those neighbours are applicants in this matter, I
think that the applicant can rely upon the provisions of
‘I note that Boegman lays no foundation for the conclu- s.7 (4)(b)(iv) of Act 200 of 1993 for locus standi to ap-
sion that the smoke generated by the Rheese burner con- ply to this Court for an interdict to restrain conduct which
tained combinations of carbon monoxide, phenols and infringes the rights under s. 29 of the neighbours of the
organic plant matter. I do not acknowledge his status as respondent.
an expert.’ And, as to Mr. Du Toit’s statement that the
process is one hit by item 67 of the Second Schedule: As to the respondent’s contentions that the interdict
should not be granted because the respondent is in the
‘I submit that it is incorrect to state that the burning of process of replacing the Rheese burner combustion sys-
the respondent’s waste necessarily causes the gases re- tem with one which will meet the specifications of the
ferred to in this paragraph. In this regard I refer to the inspectors in the Department of Health, the respondent
specific wording of item 67 of the Second Schedule, has, as a result of the (regretted) time which it has taken
which clearly shows that it is possible to burn such prod- for me to deliver this judgement, had a longer period
ucts without causing the emission of such gases. I ac- within which to instal and commission the replacement
cordingly deny the allegations in para. 10, and I do not equipment than the respondent opted for when the mat-
admit that the deponent has the necessary expert status ter was argued. In a supplementary affidavit by Mr.
to reliably express such opinions.’ Griffith, made on 27 March 1995 (and which, despite an
objection by Mr. Hartzenberg, I decided to admit), the
In response, Dr. Boegman, Mr. Potgieter and Mr. Lloyd respondent states that the Rheese burner will, as a result
(the deponent to the main founding affidavit, who also of the implementation of the new programme, be phased
107
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1
out completely by the end of October 1995. Despite this the Atmospheric Pollution Prevention Act 45 of 1965
undertaking, and despite the circumstances that the provides as follows:
Rheese burner may already have ceased to operate, I am
of the view that the grant of an interdict is necessary, ‘9. Premises on which scheduled process carried on
having regard to the unfortunately acrimonious history to be registered
of the matter and the ambivalent attitude displayed by
the respondent. However, in view of the fact that the dis- (1) Save as provided in ss (4) of s 11, no person shall
pute was already a fairly longstanding one when the within a controlled area:-
matter came before the Court, and taking into account
the possibility that the respondent’s programme of re- (a) carry on a scheduled process in or on any premises,
placement may not have kept up to schedule, I think that unless:
justice will be done if I order the interdict to take effect
from 31 January 1996. (i) he is the holder of a current registration certificate
authorizing him to carry on that process in or on those
As to the question of costs, I need only say that, in the premises; or
light of the attitude taken by the respondent, I consider
that the applicant was justified in seeking relief from the (ii) in the case of a person who was carrying on any such
Court. The applicant has been successful on all the as- process in or on any premises immediately prior to
pects raised by the respondent and I see no reason why the date of publication of the notice by virtue of
the costs of the application should not follow the result. which the area in question is a controlled area, he
Furthermore this is plainly a matter in which the appli- has within three months after that date applied for
cant was justified in employing two counsel. the issue to him of a registration certificate author-
izing the carrying on of that process in or on those
I make the following order: premises, and his application has not been re-
fused;.....’
1. With effect from 31 January 1996 the first and sec-
ond respondents are interdicted from carrying on a The remainder of s 9(1) is not material to this report -
wood burning process on the property Versameling Eds.
No. 15759, Lidgetton, in the district of Lions River,
Natal, in which process, wood waste, chips, bark and/ (2) An efficient incinerator will be used for the construc-
or sawdust are burnt in an apparatus known as a tion of wood waste. Wood will be properly dried
‘Rheese burner’. before being fed into the appliance.
2. The first and second respondents are ordered to pay ........
the costs of the applicant in this application, jointly
and severally, the one paying the other to be absolved, (5)The incinerator will only be started up after break-
such costs to include the costs of two counsel. up of any inversion condition and will not be oper-
ated outside normal daytime working hours.
Applicant’s Attorney: State Attorney. Respondents’ At-
torneys: Venn, Nemeth & Hart.
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MINISTER OF HEALTH & W ELFARE V W OODCARB (PTY) LTD & A NOTHER 1996 (3) SA 155 (S OUTH AFRICA)
Section 2
Environmental Impact
Assessment
109
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
110
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
CALVERT CLIFFS’ COORDINATING COMMITTEE, INC.,
ET AL., PETITIONERS, V. UNITED STATES ATOMIC ENERGY
COMMISSION AND UNITED STATES OF AMERICA,
RESPONDENTS, BALTIMORE GAS AND ELECTRIC
COMPANY, INTERVENOR. CALVERT CLIFFS’
COORDINATING COMMITTEE, INC., ET AL., PETITIONERS,
V. UNITED STATES ATOMIC ENERGY COMMISSION AND
UNITED STATES OF AMERICA, RESPONDENTS
Nos. 24839, 24871
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
146 U.S. App. D.C. 33; 449 F.2d 1109; 1971 U.S. App. LEXIS 8779;
2 ERC (BNA) 1779; 17 A.L.R. Fed. 1; 1 ELR 20346
April 16, 1971, Argued
July 23, 1971, Decided
DISPOSITION: ment of the Government to control, at long last, the de-
structive engine of material “progress.”1 But it remains
Remanded for Proceedings Consistent with this Opin- to be seen whether the promise of this legislation will
ion. become a reality. Therein lies the judicial role. In these
cases, we must for the first time interpret the broadest
CORE TERMS: environmental, license, certification, and perhaps most important of the recent statutes: the
fullest, water quality, balancing, staff, detailed statement, National Environmental Policy Act of 1969 (NEPA).1 We
alteration, environmental quality, operating license, fed- must assess claims that one of the agencies charged with
eral government, water, environmental protection, envi- its administration has failed to live up to the congres-
ronmental impact, practicable, recommendation, federal sional mandate. Our duty, in short, is to see that impor-
agencies, proposed action, effective date, abdication, tant legislative purposes, heralded in the halls of Con-
guidelines, accompany, environmental damage, national gress, are not lost or misdirected in the vast hallways of
policy, review process, appendix, insure, federal action, the federal bureaucracy.
regulations
NEPA, like so much other reform legislation of the last
JUDGES: Wright, Tamm and Robinson, Circuit Judges. 40 years, is cast in terms of a general mandate and broad
delegation of authority to new and old administrative
OPINION BY: WRIGHT agencies. It takes the major step of requiring all federal
agencies to consider values of environmental preserva-
OPINION: J. SKELLY WRIGHT, Circuit Judge: tion in their spheres of activity, and it prescribes certain
procedural measures to ensure that those values are in
These cases are only the beginning of what promises to fact fully respected. Petitioners argue that rules recently
become a flood of new litigation—litigation seeking ju- adopted by the Atomic Energy Commission to govern
dicial assistance in protecting our natural environment. consideration of environmental matters fail to satisfy the
Several recently enacted statutes attest to the commit- rigor demanded by NEPA. The Commission, on the other
1
Environmental Quality Improvement Act of 1970, 42 U.S.C.A. §§ 4371-4374 (1971 Pocket Part); Water and
Environmental Quality Improvement Act of 1970, Pub. L. 91-224, 91st Cong., 2d Sess. (1970), 84 Stat. 91.
2
42 U.S.C.A. § 4321 et seq. (1971 Pocket Part).
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
hand, contends that the vagueness of the NEPA mandate visions which are designed to see that all federal agen-
and delegation leaves much room for discretion and that cies do in fact exercise the substantive discretion given
the rules challenged by petitioners fall well within the them. These provisions are not highly flexible. Indeed,
broad scope of the Act. We find the policies embodied in they establish a strict standard of compliance.
NEPA to be a good deal clearer and more demanding
than does the Commission. We conclude that the Com- NEPA, first of all, makes environmental protection a part
mission’s procedural rules do not comply with the con- of the mandate of every federal agency and department.
gressional policy. Hence we remand these cases for fur- The Atomic Energy Commission, for example, had con-
ther rule making. tinually asserted, prior to NEPA, that it had no statutory
authority to concern itself with the adverse environmen-
We begin our analysis with an examination of NEPA’s tal effects of its actions.4 Now, however, its hands are no
structure and approach and of the Atomic Energy Com- longer tied. It is not only permitted, but compelled, to
mission rules which are said to conflict with the require- take environmental values into account. Perhaps the great-
ments of the Act. The relevant portion of NEPA is Title est importance of NEPA is to require the Atomic Energy
I, consisting of five sections. 5 Section 101 sets forth the Commission and other agencies to consider environmen-
Act’s basic substantive policy: that the federal govern- tal issues just as they consider other matters within their
ment “use all practicable means and measures” to pro- mandates. This compulsion is most plainly stated in Sec-
tect environmental values. Congress did not establish tion 102. There, “Congress authorizes and directs that, to
environmental protection as an exclusive goal; rather, it the fullest extent possible: (1) the policies, regulations,
desired a reordering of priorities, so that environmental and public laws of the United States shall be interpreted
costs and benefits will assume their proper place along and administered in accordance with the policies set forth
with other considerations. In Section 101(b), imposing in this Act.” Congress also “authorizes and directs” that
an explicit duty on federal officials, the Act provides that “(2) all agencies of the Federal Government shall” follow
“it is the continuing responsibility of the Federal Gov- certain rigorous procedures in considering environmen-
ernment to use all practicable means, consistent with tal values.5 Senator Jackson, [*1113] NEPA’s principal
other essential considerations of national policy,” to avoid sponsor, stated that “no agency will [now] be able to main-
environmental degradation, preserve “historic, cultural, tain that it has no mandate or no requirement to consider
and natural” resources, and promote “the widest range the environmental consequences of its actions.”6 He char-
of beneficial uses of the environment without undesir- acterized the requirements of Section 102 as “action-forc-
able and unintended consequences.” ing” and stated that “otherwise, these lofty declarations
[in Section 101] are nothing more than that.”7
Thus the general substantive policy of the Act is a flex-
ible one. It leaves room for a responsible exercise of dis- The sort of consideration of environmental values which
cretion and may not require particular substantive results NEPA compels is clarified in Section 102(2) (A) and (B).
in particular problematic instances. However, the Act also In general, all agencies must use a “systematic, interdis-
contains very important “procedural” provisions—pro- ciplinary approach” to environmental planning and evalu-
3
The full text of Title I is printed as an appendix to this opinion.
4
Before the enactment of NEPA, the Commission did recognize its separate statutory mandate to consider the specific radiological hazards
caused by its actions; but it argued that it could not consider broader environmental impacts. Its position was upheld in State of New Hampshire
v. Atomic Energy Commission, 1 Cir., 406 F.2d 170, cert. denied, 395 U.S. 962, 89 S. Ct. 2100, 23 L. Ed. 2d 748 (1969).
5
Only once—in § 102(2) (B)—does the Act state, in terms, that federal agencies must give full “consideration” to environmental impact as
part of their decision making processes. However, a requirement of consideration is clearly implicit in the substantive mandate of § 101, in the
requirement of § 102(1) that all laws and regulations be “interpreted and administered” in accord with that mandate, and in the other specific
procedural meassures compelled by § 102(2). The only circuit to interpret NEPA to date has said that “this Act essentially states that every
federal agency shall consider ecological factors when dealing with activities which may have an impact on man’s environment.”
Zabel v. Tabb, 5 Cir., 430 F.2d 199, 211 (1970). Thus a purely mechanical compliance with the particular measures required in § 102 (2) (C) &
(D) will not satisfy the Act if they do not amount to full good faith consideration of the environment. See text at page 1116 infra. The
requirements of § 102(2) must not be read so narrowly as to erase the general import of §§ 101, 102(1) and 102(2) (A) & (B).
On April 23, 1971, the Council on Environmental Quality—established by NEPA—issued guidelines for federal agencies on compliance with
the Act. 36 Fed. Reg. 7723 (April 23, 1971). The Council stated that “the objective of section 102(2) (C) of the Act and of these guidelines is to
build into the agency decision making process an appropriate and careful consideration of the environmental aspects of proposed action * * *.”
Id. at 7724.
6
Hearings on S. 1075, S. 237 and S. 1752 Before Senate Committee on Interior and Insular Affairs, 91st Cong., 1st Sess. 206 (1969). Just
before the Senate finally approved NEPA, Senator Jackson said on the floor that the Act “directs all agencies to assure consideration of the
environmental impact of their actions in decisionmaking.” 115 Cong.Rec. (Part 30) 40416 (1969).
7
Hearings on S. 1075, supra Note 6, at 116. Again, the Senator reemphasized his point on the floor of the Senate, saying: “To insure that the
policies and goals defined in this act are infused into the ongoing programs and actions of the Federal Government, the act also established some
important ‘action-forcing’ procedures.” 115 Cong.Rec. (Part 30) at 40416. The Senate Committee on Interior and Insular Affairs Committee
Report on NEPA also stressed the importance of the “action-forcing” provisions which require full and rigorous consideration of environmental
112
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
ation “in decisionmaking which may have an impact on process has [**11] in fact taken place and, most impor-
man’s environment.” In order to include all possible en- tantly, allows those removed from the initial process to
vironmental factors in the decisional equation, agencies evaluate and balance the factors on their own.
must “identify and develop methods and procedures
* * * which will insure that presently unquantified envi- Of course, all of these Section 102 duties are qualified
ronmental amenities and values may be given appropri- by the phrase “to the fullest extent possible.” We must
ate consideration in decisionmaking along with economic stress as forcefully as possible that this language does
and technical considerations.”8 “Environmental ameni- not provide an escape hatch for footdragging agencies;
ties” will often be in conflict with “economic and tech- it does not make NEPA’s procedural requirements some-
nical considerations.” To “consider” the former “along how “discretionary.” Congress did not intend the Act to
with” the latter must involve a balancing process. In some be such a paper tiger. Indeed, the requirement of envi-
instances environmental costs may outweigh economic ronmental consideration “to the fullest extent possible”
and technical benefits and in other instances they may sets a high standard for the agencies, a standard which
not. But NEPA mandates a rather finely tuned and “sys- must be rigorously enforced by the reviewing courts.
tematic” balancing analysis in each instance.9
Unlike the substantive duties of Section 101(b), which re-
To ensure that the balancing analysis is carried out and quire agencies to “use all practicable means consistent with
given full effect, Section 102(2) (C) requires that respon- other essential considerations,” the procedural duties of
sible officials of all agencies prepare a “detailed state- Section 102 must be fulfilled to the “fullest extent possi-
ment” covering the impact of particular actions on the ble.”10 This contrast, in itself, is revealing. But the dis-
environment, the environmental [**10] costs which might positive factor in our interpretation is the expressed views
be avoided, and alternative measures which might alter of the Senate and House conferees who wrote the “fullest
the costbenefit equation. The apparent purpose of the “de- extent possible” language into NEPA. They stated: 11
tailed statement” is to aid in the agencies’ own decision
making process and to advise other interested agencies “The purpose of the new language is to make it clear
and the public of the environmental consequences of that each agency of the Federal Government shall com-
planned federal action. Beyond the “detailed statement,” ply with the directives set out in [Section 102(2)] un-
Section 102(2) (D) requires all agencies specifically to less the existing law applicable to such agency’s op-
erations expressly prohibits or makes full compliance
“study, develop, and describe appropriate alternatives to
with one of the directives impossible. Thus, it is the
recommended courses of action in any proposal which intent of the conferees that the provision ‘to the fullest
involves unresolved conflicts concerning alternative uses extent possible’ shall not be used by any Federal agency
of available resources.” This requirement, like the “de- as a means of avoiding compliance with the directives
tailed statement” requirement, seeks to ensure that each set out in section 102. Rather, the language in section
agency decision maker has before him and takes into 102 is intended to assure that all agencies of the Fed-
proper account all possible approaches to a particular eral Government shall comply with the directives set
project (including total abandonment of the project) out in said section ‘to the fullest extent possible’ under
which would alter the environmental impact and the cost- their statutory authorizations and that no agency shall
utilize an excessively narrow construction of its exist-
benefit balance. Only in that fashion is it likely that the
ing statutory authorizations to avoid compliance.”
most intelligent, optimally beneficial decision will ulti-
mately be made. Moreover, by compelling a formal “de- Thus the Section 102 duties are not inherently flexible.
tailed statement” and a description of alternatives, NEPA They must be complied with to the fullest extent, unless
provides evidence that the mandated decision making there is a clear conflict of statutory authority.12 Consid-
8
The word “appropriate” in § 102(2) (B) cannot be interpreted to blunt the thrust of the whole Act or to give agencies broad discretion to
downplay environmental factors in their decision making processes. The Act requires consideration “appropriate” to the problem of protecting
our threatened environment, not consideration “appropriate” to the whims, habits or other particular concerns of federal agencies. See Note 5
supra.
9
Senator Jackson specifically recognized the requirement of a balancing judgment. He said on the floor of the Senate: “Subsection 102(b)
requires the development of procedures designed to insure that all relevant environmental values and amenities are considered in the calculus of
project development and decisionmaking. Subsection 102(c) establishes a procedure designed to insure that in instances where a proposed major
Federal action would have a significant impact on the environment that the impact has in fact been considered, that any adverse effects which
cannot be avoided are justified by some other stated consideration of national policy, that short-term uses are consistent with long-term produc-
tivity, and that any irreversible and irretrievable commitments of resources are warranted.” 115 Cong.Rec. (Part 21) 29055 (1969).
10
The Commission, arguing before this court, has mistakenly confused the two standards, using the § 101(b) language to suggest that it has
broad discretion in performance of § 102 procedural duties. We stress the necessity to separate the two, substantive and procedural, standards.
See text at page 1128 infra.
11
The Senators’ views are contained in “Major Changes in S. 1075 as Passed by the Senate,” 115 Cong.Rec. (Part 30) at 40417-40418. The
Representatives’ views are contained in a separate statement filed with the Conference Report, 115 Cong.Rec. (Part 29) 39702-39703 (1969).
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
erations of administrative difficulty, delay or economic were devised strictly in order to comply with the NEPA
cost will not suffice to strip the section of its fundamen- procedural requirements—but petitioners argue that they
tal importance. fall far short of the congressional mandate.
We conclude, then, that Section 102 of NEPA mandates The period of the rules’ gestation does not indicate
a particular sort of careful and informed decisionmaking overenthusiasm on the Commission’s part. NEPA went
process and creates judicially enforceable duties. The re- into effect on January 1, 1970. On April 2, 1970—three
viewing courts probably cannot reverse a substantive months later—the Commission issued its first, short policy
decision on its merits, under Section 101, unless it be statement on implementation of the Act’s procedural pro-
shown that the actual balance of costs and benefits that visions. 15 After another span of two months, the Com-
was struck was arbitrary or clearly gave insufficient mission published a notice of proposed rule making in
weight to environmental values. But if the decision was the Federal Register.16 Petitioners submitted substantial
reached procedurally without individualized considera- comments critical of the proposed rules. Finally, on De-
tion and balancing of environmental factors—conducted cember 3, 1970, the Commission terminated its long rule
fully and in good faith—it is the responsibility of the making proceeding by issuing a formal amendment, la-
courts to reverse. As one District Court has said of Sec- belled Appendix D, to its governing regulations.17 Appen-
tion 102 requirements: dix D is a somewhat revised version of the earlier pro-
posal and, at last, commits the Commission to consider
“It is hard to imagine a clearer or stronger mandate to environmental impact in its decision making process.
the Courts.”13
The procedure for environmental study and considera-
In the cases before us now, we do not have to review a tion set up by the Appendix D rules is as follows: Each
particular decision by the Atomic Energy Commission applicant for an initial construction permit must submit
granting a construction permit or an operating license. to the Commission his own “environmental report,” pre-
Rather, we must review the Commission’s recently prom- senting his assessment of the environmental impact of
ulgated rules which govern consideration of environmen- the planned facility and possible alternatives which would
tal values in all such individual decisions. 14 The rules alter the impact. When construction is completed and
12
Section 104 of NEPA provides that the Act does not eliminate any duties already imposed by other “specific statutory obligations.” Only when
such specific obligations conflict with NEPA do agencies have a right under § 104 and the “fullest extent possible” language to dilute their
compliance with the full letter and spirit of the Act. See text at page 1123 infra. Sections 103 and 105 also support the general interpretation that
the “fullest extent possible” language exempts agencies from full compliance only when there is a conflict of statutory obligations. Section 103
provides for agency review of existing obligations in order to discover and, if possible, correct any conflicts. See text at pages 1020-1021 infra.
And § 105 provides that “the policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal
agencies.” The report of the House conferees states that § 105 “does not obviate the requirement that the Federal agencies conduct their activities
in accordance with the provisions of this bill unless to do so would clearly violate their existing statutory obligations.” 115 Cong.Rev. (Part 29)
at 39703. The section-by-section analysis by the Senate conferees makes exactly the same point in slightly different language. 115 Cong.Rec.
(Part 30) at 40418. The guidelines published by the Council on Environmental Quality state that “the phrase ‘to the fullest extent possible’ is
meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency’s
operations expressly prohibits or makes compliance impossible.” 36 Fed.Reg. at 7724.
13
Texas Committee on Natural Resources v. United States, W.D.Tex., 1 Envir. Rpts—Cas. 1303, 1304 (1970). A few of the courts which have
considered NEPA to date have made statements stressing the discretionary aspects of the Act. See, e.g., Pennsylvania Environmental Council v.
Bartlett, M.D.Pa., 315 F. Supp. 238 (1970); Bucklein v. Volpe, N.D.Cal., 2 Envir. Rpts—Cas. 1082, 1083 (1970). The Commission and intervenors
rely upon these statements quite heavily. However, their reliance is misplaced, since the courts in question were not referring to the procedural
duties created by NEPA. Rather, they were concerned with the Act’s substantive goals or with such peripheral matters as retroactive application
of the Act.
The general interpretation of NEPA which we outline in text at page 1112 supra is fully supported by the scholarly commentary. See, e.g.,
Donovan, The Federal Government and Environmental Control: Administrative Reform on the Executive Level, 12 B.C.Ind. & Com.L.Rev. 541
(1971); Hanks & Hanks, An Environmental Bill of Rights: The Citizen Suit and the National Environmental Policy Act of 1969, 24 Rutg. L.Rev.
231 (1970); Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum. L.Rev. 612, 643-650 (1970);
Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 Envir.L.Rptr. 50035 (1971); Yannacone, National Environ-
mental Policy Act of 1969, 1 Envir.Law 8 (1970); Note, The National Environmental Policy Act: A Sheep in Wolf’s Clothing?, 37 Brooklyn
L.Rev. 139 (1970).
14
In Case No. 24,871, petitioners attack four aspects of the Commission’s rules, which are outlined in text. In Case No. 24,839, they challenge
a particular application of the rules in the granting of a particular construction permit—that for the Calvert Cliffs Nuclear Power Plant. However,
their challenge consists largely of an attack on the substance of one aspect of the rules also attacked in Case No. 24,871. Thus we are able to
resolve both cases together, and our remand to the Commission for further rule making includes a remand for further consideration relating to the
Calvert Cliffs Plant in Case No. 24,839. See Part V of this opinion, infra.
15
35 Fed.Reg. 5463 (April 2, 1970).
16
35 Fed.Reg. 8594 (June 3, 1970).
17
35 Fed.Reg. 18469 (December 4, 1970). The version of the rules finally adopted is now printed in 10 C.F.R. § 50, App. D, pp. 246-250 (1971).
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CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
the applicant applies for a license to operate the new fa- may seem in technical compliance with the letter of that
cility, he must again submit an “environmental report” provision. They state:
noting any factors which have changed since the origi-
nal report. At each stage, the Commission’s regulatory “12. If any party to a proceeding * * * raises any [envi-
staff must take the applicant’s report and prepare its own ronmental] issue the Applicant’s Environmental Report
“detailed statement” of environmental costs, benefits and and the Detailed Statement will be offered in evidence.
alternatives. The statement will then be circulated to other The atomic safety and licensing board will make find-
interested and responsible agencies and made available ings of fact on, and resolve, the matters in controversy
to the public. After comments are received from those among the parties with regard to those issues. Depend-
sources, the staff must prepare a final “detailed state- ing on the resolution of those issues, the permit or li-
ment” and make a final recommendation on the applica- cense may be granted, denied, or appropriately condi-
tion for a construction permit or operating license. tioned to protect environmental values.
Up to this point in the Appendix D rules petitioners have “13. When no party to a proceeding * * * raises any [en-
raised no challenge. However, they do attack four other, vironmental] issue such issues will not be considered by
specific parts of the rules which, they say, violate the the atomic safety and licensing board. Under such cir-
requirements of Section 102 of NEPA. Each of these parts cumstances, although the Applicant’s Environmental
in some way limits full consideration and individualized Report, comments thereon, and the Detailed Statement
balancing of environmental values in the Commission’s will accompany the application through the Commis-
decision making process. (1) Although environmental sion’s review processes, they will not be received in evi-
factors must be considered by the agency’s regulatory dence, and the Commission’s responsibilities under the
staff under the rules, such factors need not be consid- National Environmental Policy Act of 1969 will be car-
ered by the hearing board conducting an independent ried out in toto outside the hearing process.”18
review of staff recommendations,unless affirmatively
raised by outside parties or staff members. (2) Another The question here is whether the Commission is correct in
part of the procedural rules prohibits any such party from thinking that its NEPA responsibilities may “be carried out
raising nonradiological environmental issues at any hear- in toto outside the hearing process”—whether it is enough
ing if the notice for that hearing appeared in the Federal that environmental data and evaluations merely “accom-
Register before March 4, 1971. (3) Moreover, the hear- pany” an application through the review process, but re-
ing board is prohibited from conducting an independent ceive no consideration whatever from the hearing board.
evaluation and balancing of certain environmental fac-
tors if other responsible agencies have already certified We believe that the Commission’s crabbed interpreta-
that their own environmental standards are satisfied by tion of NEPA makes a mockery of the Act. What possi-
the proposed federal action. (4) Finally, the Commission’s ble purpose could there be in the Section 102 (2) (C)
rules provide that when a construction permit for a facil- requirement (that the “detailed statement” accompany
ity has been issued before NEPA compliance was re- proposals through agency review processes) if “accom-
quired and when an operating license has yet to be [**19] pany” means no more than physical proximity—man-
issued, the agency will not formally consider environ- dating no more than the physical act of passing certain
mental factors or require modifications in the proposed folders and papers, unopened, to reviewing officials along
facility until the time of the issuance of the operating with other folders and papers? What possible purpose
license. Each of these parts of the Commission’s rules could there be in requiring the “detailed statement” to
will be described at greater length and evaluated under be before hearing boards, if the boards are free to ignore
NEPA in the following sections of this opinion. entirely the contents of the statement? NEPA was meant
to do more than regulate the flow of papers in the federal
NEPA makes only one specific reference to considera- bureaucracy. The word “accompany” in Section 102(2)
tion of environmental values in agency review processes. (C) must not be read so narrowly as to make the Act
Section 102(2) (C) provides that copies of the staff’s ludicrous. It must, rather, be read to indicate a congres-
“detailed statement” and comments thereon “shall ac- sional intent that environmental factors, as compiled in
company the proposal through the existing agency re- the “detailed statement,” be considered through agency
view processes.” The Atomic Energy Commission’s rules review processes.19
18
10 C.F.R. § 50, App. D, at 249.
19
The guidelines issued by the Council on Environmental Quality emphasize the importance of consideration of alternatives to staff recommen-
dations during the agency review process: “A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of
the adverse environmental effects is essential. Sufficient analysis of such alternatives and their costs and impact on the environment should
accompany the proposed action through the agency review process in order not to foreclose prematurely options which might have less detrimen-
tal effects.” 36 Fed.Reg. at 7725. The Council also states that an objective of its guidelines is “to assist agencies in implementing not only the
letter, but the spirit, of the Act.” Id. at 7724.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Beyond Section 102(2) (C), NEPA requires that agen- The rationale of the Commission’s limitation of envi-
cies consider the environmental impact of their actions ronmental issues to hearings in which parties affirma-
“to the fullest extent possible.” The Act is addressed to tively raise those issues may have been one of economy.
agencies as a whole, not only to their professional staffs. It may have been supposed that, whenever there are seri-
Compliance to the “fullest” possible extent would seem ous environmental costs overlooked or uncorrected by
to demand that environmental issues be considered at the staff, some party will intervene to bring those costs
every important stage in the decision making process to the hearing board’s attention. Of course, independent
concerning a particular action—at every stage where an review of the “detailed statement” and independent bal-
overall balancing of environmental and ancing of factors in an uncontested hearing will take some
nonenvironmental factors is appropriate and where al- time. If it is done properly, it will take a significant
terations might be made in the proposed action to mini- amount of time. But all of the NEPA procedures take
mize environmental costs. Of course, consideration which time. Such administrative costs are not enough to under-
is entirely duplicative is not necessarily required. But cut the Act’s requirement that environmental protection
independent review of staff proposals by hearing boards be considered “to the fullest extent possible,” see text at
is hardly a duplicative function. A truly independent re- page 1114, supra. It is, moreover, unrealistic to assume
view provides a crucial check on the staff’s recommen- that there will always be an intervenor with the informa-
dations. The Commission’s hearing boards automatically tion, energy and money required to challenge a staff rec-
consider nonenvironmental factors, even though they ommendation which ignores environmental costs. NEPA
have been previously studied by the staff. Clearly, the establishes environmental protection as an integral part
review process is an appropriate stage at which to bal- of the Atomic Energy Commission’s basic mandate. The
ance conflicting factors against one another. And, just as primary responsibility for fulfilling that mandate lies with
clearly, it provides an important opportunity to reject or the Commission. Its responsibility is not simply to sit
significantly modify the staff’s recommended action. back, like an umpire, and resolve adversary contentions
Environmental factors, therefore, should not be singled at the hearing stage. Rather, it must itself take the initia-
out and excluded, at this stage, from the proper balance tive of considering environmental values at every dis-
of values envisioned by NEPA. tinctive and comprehensive stage of the process beyond
the staff’s evaluation and recommendation.21
The Commission’s regulations provide that in an
uncontested proceeding the hearing board shall on its Congress passed the final version of NEPA in late 1969,
own “determine whether the application and the record and the Act went into full effect on January 1, 1970. Yet
of the proceeding contain sufficient information, and the the Atomic Energy Commission’s rules prohibit any con-
review of the application by the Commission’s regulatory sideration of environmental issues by its hearing boards
staff has been adequate, to support affirmative findings at proceedings officially noticed before March 4, 1971.22
on” various nonenvironmental factors.20 NEPA requires This is 14 months after the effective date of NEPA. And
at least as much automatic consideration of environmental the hearings affected may go on for as much as a year
factors. In uncontested hearings, the board need not longer until final action is taken. The result is that major
necessarily go over the same ground covered in the federal actions having a significant environmental im-
“detailed statement.” But it must at least examine the pact may be taken by the Commission, without full NEPA
statement carefully to determine whether “the review * compliance, more than two years after the Act’s effec-
* * by the Commission’s regulatory staff has been tive date. In view of the importance of environmental
adequate.” And it must independently consider the final consideration during the agency review process, see Part
balance among conflicting factors that is struck in the II supra, such a time lag is shocking.
staff’s recommendation.
20
10 C.F.R. § 2.104(b) (2) (1971).
21
In recent years, the courts have become increasingly strict in requiring that federal agencies live up to their mandates to consider the public
interest. They have become increasingly impatient with agencies which attempt to avoid or dilute their statutorily imposed role as protectors of
public interest values beyond the narrow concerns of industries being regulated. See, e.g., Udall v. FPC, 387 U.S. 428, 87 S. Ct. 1712, 18 L. Ed.
2d 869 (1967); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971); Moss v. C. A. B., 139 U.S.App.D.C.
150, 430 F.2d 891 (1970); Environmental Defense Fund, Inc. v. U. S. Dept. of H. E. & W., 138 U.S.App.D.C. 381, 428 F.2d 1083 (1970). In
commenting on the Atomic Energy Commission’s pre-NEPA duty to consider health and safety matters, the Supreme Court said “the responsibil-
ity for safeguarding that health and safety belongs under the statute to the Commission.” Power Reactor Development Co. v. International Union
of Elec., Radio and Mach. Workers, 367 U.S. 396, 404, 81 S. Ct. 1529, 1533, 6 L. Ed. 2d 924 (1961). The Second Circuit has made the same point
regarding the Federal Power Commission: “In this case, as in many others, the Commission has claimed to be the representative of the public
interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public
must receive active and affirmative protection at the hands of the Commission.” Scenic Hudson Preservation Conference v. FPC, 2 Cir., 354 F.2d
608, 620 (1965).
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CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
The Commission explained that its very long time lag 1, 1971, such measures as may be necessary to bring
was intended “to provide an orderly period of transition their authority and policies into conformity with the in-
in the conduct of the Commission’s regulatory proceed- tent, purposes, and procedures set forth in this Act.”
ings and to avoid unreasonable delays in the construc-
tion and operation of nuclear power plants urgently The Commission, however, cannot justify its time lag
needed to meet the national requirements for electric under these Section 103 provisions. Indeed, it has not
power.”23 Before this court, it has claimed authority for attempted to do so; only intervenors have raised the ar-
its action, arguing that “the statute did not lay down de- gument. Section 103 could support a substantial delay
tailed guidelines and inflexible timetables for its imple- only by an agency which in fact discovered an insuper-
mentation; and we find in it no bar to agency provisions able barrier to compliance with the Act and required time
which are designed to accommodate transitional imple- to formulate and propose the needed reformative meas-
mentation problems.” 24 ures. The actual review of existing statutory authority
and regulations cannot be a particularly lengthy process
Again, the Commission’s approach to statutory interpre- [**30] for experienced counsel of a federal agency. Of
tation is strange indeed—so strange that it seems to re- course, the Atomic Energy Commission discovered no
veal a rather thoroughgoing reluctance to meet the NEPA obstacle to NEPA implementation. Although it did not
procedural obligations in the agency review process, the report its conclusion to the President until October 2,
stage at which deliberation is most open to public ex- 1970, that nine-month delay (January to October) can-
amination and subject to the participation of public not justify so long a period of noncompliance with the
intervenors. The Act, it is true, lacks an “inflexible time- Act. It certainly cannot justify a further delay of compli-
table” for its implementation. But it does have a clear ance until March 4, 1971.
effective date, consistently enforced [**28] by review-
ing courts up to now. Every federal court having faced No doubt the process formulating procedural rules to
the issues has held that the procedural requirements of implement NEPA takes some time. Congress cannot have
NEPA must be met in order to uphold federal action taken expected that federal agencies would immediately begin
after January 1, 1970.25 The absence of a “timetable” for considering environmental issues on January 1, 1970.
compliance has never been held sufficient, in itself, to But the effective date of the Act does set a time for agen-
put off the date on which a congressional mandate takes cies to begin adopting rules and it demands that they
effect. The absence of a “timetable,” rather, indicates that strive, “to the fullest extent possible,” to be prompt in
compliance is required forthwith. the process. The Atomic Energy Commission has failed
in this regard.26 Consideration of environmental issues
The only part of the Act which even implies that imple- in the agency review process, for example, is quite clearly
mentation may be subject, in some cases, to some sig- compelled by the Act.27 The Commission cannot justify
nificant delay is Section 103. There, Congress provided its 11-month delay in adopting rules on this point as part
that all agencies must review “their present statutory of a difficult, discretionary effort to decide whether or
authority, administrative regulations, and current poli- not its hearing boards should deal with environmental
cies and procedures for the purpose of determining questions at all.
whether there are any deficiencies or inconsistencies
therein which prohibit full compliance” with NEPA. Even if the long delay had been necessary, however, the
Agencies finding some such insuperable difficulty are Commission would not be relieved of all NEPA respon-
obliged to “propose to the President not later than July sibility to hold public hearings on the environmental con-
22
10 C.F.R. § 50, App. D, at 249.
23
35 Fed.Reg. 18470 (December 4, 1970).
24
Brief for respondents in No. 24,871 at 49.
25
In some cases, the courts have had a difficult time determining whether particular federal actions were “taken” before or after January 1, 1970.
But they have all started from the basic rule that any action taken after that date must comply with NEPA’s procedural requirements. See Note,
Retroactive Application of the National Environmental Policy Act of 1969, 69 Mich.L.Rev. 732 (1971), and cases cited therein. Clearly, any
hearing held between January 1, 1970 and March 4, 1971 which culminates in the grant of a permit or license is a federal action taken after the
Act’s effective date.
26
See text at page 1116 supra.
27
As early as March 5, 1970, President Nixon stated in an executive order that NEPA requires consideration of environmental factors at public
hearings. Executive Order 11514, 35 Fed.Reg. 4247 (March 5, 1970). See also Part II of this opinion.
117
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
sequences of actions taken between January 1, 1970 and must proceed at a pace faster than a funeral procession.
final adoption of the rules. Although the Act’s effective
date may not require instant compliance, it must at least In the end, the Commission’s long delay seems based
require that NEPA procedures, once established, be ap- upon what it believes to be a pressing national power
plied to consider prompt alterations in the plans or op- crisis. Inclusion of environmental issues in pre-March 4,
erations of facilities approved without compliance.28 Yet 1971 hearings might have held up the licensing of some
the Commission’s rules contain no such provision. In- power plants for a time. But the very purpose of NEPA
deed, they do not even apply to the hearings still being was to tell federal agencies that environmental protec-
conducted at the time of their adoption on December 3, tion is as much a part of their responsibility as is protec-
1970—or, for that matter, to hearings [**32] initiated in tion and promotion of the industries they regulate.
the following three months. Whether or not the spectre of a national power crisis is
as real as the Commission apparently believes, it must
The delayed compliance date of March 4, 1971, then, not be used to create a blackout of environmental con-
cannot be justified by the sideration in the agency review process. NEPA compels
a case-by-case examination and balancing of discrete
Commission’s long drawn out rule making process. factors. Perhaps there may be cases in which the need
for rapid licensing of a particular facility would justify a
Strangely, the Commission has principally relied on more strict time limit on a hearing board’s review of environ-
pragmatic arguments. It seems an unfortunate affliction mental issues; but a blanket banning of such issues until
of large organizations to resist new procedures and to March 4, 1971 is impermissible under NEPA.
envision massive roadblocks to their adoption. Hence the
Commission’s talk of the need for an “orderly transi- The sweep of NEPA is extraordinarily broad, compelling
tion” to the NEPA procedures. It is difficult to credit the consideration of any and all types of environmental im-
Commission’s argument that several months were needed pact of federal action. However, the Atomic Energy Com-
to work the consideration of environmental values into mission’s rules specifically exclude from [**35] full con-
its review process. Before the enactment of NEPA, the sideration a wide variety of environmental issues. First,
Commission already had regulations requiring that hear- they provide that no party may raise and the Commission
ings include health, safety and radiological matters.29 The may not independently examine any problem of water
introduction of environmental matters cannot have pre- quality—perhaps the most significant impact of nuclear
sented a radically unsettling problem. And, in any event, power plants. Rather, the Commission indicates that it will
the obvious sense of urgency on the part of Congress defer totally to water quality standards devised and ad-
should make clear that a transition, however “orderly,” ministered by state agencies and approved by the federal
28
In Part V of this opinion, we hold that the Commission must promptly consider the environmental impact of projects initially approved before
January 1, 1970 but not yet granted an operating license. We hold that the Commission may not wait until construction is entirely completed and
consider environmental factors only at the operating license hearings; rather, before environmental damage has been irreparably done by full
construction of a facility, the Commission must consider alterations in the plans. Much the same principle—of making alterations while they still
may be made at relatively small expense—applies to projects approved without NEPA compliance after the Act’s effective date. A total reversal
of the basic decision to construct a particular facility or take a particular action may then be difficult, since substantial resources may already have
been committed to the project. Since NEPA must apply to the project in some fashion, however, it is essential that it apply as effectively as
possible—requiring alterations in parts of the project to which resources have not yet been inalterably committed at great expense.
One District Court has dealt with the problem of instant compliance with NEPA. It suggested another measure which agencies should take while
in the process of developing rules. It said: “The NEPA does not require the impossible. Nor would it require, in effect, a moratorium on all
projects which had an environmental impact while awaiting compliance with § 102(2) (B). It would suffice if the statement pointed out this
deficiency. The decisionmakers could then determine whether any purpose would be served in delaying the project while awaiting the develop-
ment of such criteria.” Environmental Defense Fund, Inc. v. Corps of Engineers, E.D.Ark., 325 F. Supp. 749, 758 (1971). Apparently, the Atomic
Energy Commission did not even go this far toward considering the lack of a NEPA public hearing as a basis for delaying projects between the
Act’s effective date and adoption of the rules.
Of course, on the facts of these cases, we need not express any final view on the legal effect of the Commission’s failure to comply with NEPA
after the Act’s effective date. Mere post hoc alterations in plans may not be enough, especially in view of the Commission’s long delay in
promulgating rules. Less than a year ago, this court was asked to review a refusal by the Atomic Energy Commission to consider environmental
factors in granting a license. We held that the case was not yet ripe for review. But we stated: “If the Commission persists in excluding such
evidence, it is courting the possibility that if error is found a court will reverse its final order, condemn its proceeding as so much waste motion,
and order that the proceeding be conducted over again in way that realistically permits de novo consideration of the tendered evidence.”
Thermal Ecology Must be Preserved v. AEC, 139 U.S.App.D.C. 366, 368, 433 F.2d 524, 526 (1970).
29
See 10 C.F.R. § 20 (1971) for the standards which the Commission had developed to deal with radioactive emissions which might pose health
or safety problems.
118
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
government under the Federal Water Pollution Control sibility for the particular federal action in question, at-
Act.30 Secondly, the rules provide for similar abdication tend only to one aspect of the problem: the magnitude of
of NEPA authority to the standards of other agencies: certain environmental costs. They simply determine
whether those costs exceed an allowable amount. Their
“With respect to those aspects of environmental quality certification does not mean that they found no environ-
for which environmental quality standards and require- mental damage whatever. In fact, there may be signifi-
ments have been established by authorized Federal, State, cant environmental damage (e.g., water pollution), but
and regional agencies, proof that the applicant is equipped not quite enough to violate applicable (e.g., water qual-
to observe and agrees to observe such standards and re- ity) standards. Certifying agencies do not attempt to
quirements will be considered a satisfactory showing that weigh that damage against the opposing benefits. Thus
there will not be a significant, adverse effect on the envi- the balancing analysis remains to be done. It may be that
ronment. Certification by the appropriate agency that the environmental costs, though passing prescribed stand-
there is reasonable assurance that the applicant for the ards, are nonetheless great enough to outweigh the par-
permit or license will observe such standards and require- ticular economic and technical benefits involved in the
ments will be considered dispositive for this purpose.”31 planned action. The only agency in a position to make
The most the Commission will do is include a condition such a judgment is the agency with overall responsibil-
in all construction permits and operating licenses requir- ity for the proposed federal action—the agency to which
ing compliance with the water quality or other standards NEPA is specifically directed.
set by such agencies.32 The upshot is that the NEPA pro-
cedures, viewed by the Commission as superfluous, will The Atomic Energy Commission, abdicating entirely to
wither away in disuse, applied only to those environmen- other agencies’ certifications, neglects the mandated bal-
tal issues wholly unregulated by any other federal, state ancing analysis. Concerned members of the public are
or regional body. thereby precluded from raising a wide range of environ-
mental issues in order to affect particular Commission
We believe the Commission’s rule is in fundamental con- decisions. And the special purpose of NEPA is subverted.
flict with the basic purpose of the Act. NEPA mandates
a case-by-case balancing judgment on the part of federal Arguing before this court, the Commission has made
agencies. In each individual case, the particular economic much of the special environmental expertise of the agen-
and technical benefits of planned action must be assessed cies which set environmental standards. NEPA did not
and then weighed against the environmental costs; alter- overlook this consideration. Indeed, the Act is quite ex-
natives must be considered which would affect the bal- plicit in describing the attention which is to be given to
ance of values. See text at page 1113 supra. The magni- the views and standards of other agencies. Section 102
tude of possible benefits and possible costs may lie any- (2) (C) provides:
where on a broad spectrum. Much will depend on the
particular magnitudes involved in particular cases. In “Prior to making any detailed statement, the responsi-
some cases, the benefits will be great enough to justify a ble Federal official shall consult with and obtain the
certain quantum of environmental costs; in other cases, comments of any Federal agency which has jurisdic-
they will not be so great and the proposed action may tion by law or special expertise with respect to any
environmental impact involved. Copies of such state-
have to be abandoned or significantly altered so as to
ment and the comments and views of the appropriate
bring the benefits and costs into a proper balance. The Federal, State, and local agencies, which are author-
point of the individualized balancing analysis is to en- ized to develop and enforce environmental standards,
sure that, with possible alterations, the optimally benefi- shall be made available to the President, the Council
cial action is finally taken. on Environmental Quality and to the public.”
Certification by another agency that its own environmen- Thus the Congress was surely cognizant of federal, state
tal standards are satisfied involves an entirely different and local agencies “authorized to develop and enforce
kind of judgment. Such agencies, without overall respon- environmental standards.” But it provided, in Section
30
10 C.F.R. § 50, App. D, at 249. Appendix D does require that applicants’ environmental reports and the Commission’s “detailed statements”
include “a discussion of the water quality aspects of the proposed action.” Id. at 248. But, as is stated in text, it bars independent consideration
of those matters by the Commission’s reviewing boards at public hearings. It also bars the Commission from requiring—or even considering—
any water protection measures not already required by the approving state agencies. See Note 31 infra.
The section of the Federal Water Pollution Control Act establishing a system of state agency certification is § 21, as amended in the Water
Quality Improvement Act of 1970. 33 U.S.C.A. § 1171 (1970). In text below, this section is discussed as part of the Water Quality Improvement
Act.
31
10 C.F.R. § 50, App. D, at 249.
32
Ibid.
119
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
102(2) (C), only for full consultation. It most certainly obedience does not imply total abdication. Certainly, the
did not authorize a total abdication to those agencies. language of Section 104 does not authorize an abdica-
Nor did it grant a license to disregard the main body of tion. It does not suggest that other “specific statutory ob-
NEPA obligations. Of course, federal agencies such as ligations” will entirely replace NEPA. Rather, it ensures
the Atomic Energy Commission may have specific du- that three sorts of “obligations” will not be undermined
ties, under acts other than NEPA, to obey particular en- by NEPA: (1) the obligation to “comply” with certain
vironmental standards. Section 104 of NEPA makes clear standards, (2) the obligation to “coordinate” or “consult”
that such duties are not to be ignored: with certain agencies, and (3) the obligation to “act, or
refrain from acting contingent upon” a certification from
“Nothing in Section 102 or 103 shall in any way affect certain agencies. WQIA imposes the third sort of obliga-
the specific statutory obligations of any Federal agency tion. It makes the granting of a license by the Commis-
(1) to comply with criteria or standards of environmen- sion “contingent upon” a water quality certification. But
tal quality, (2) to coordinate or consult with any other it does not require the Commission to grant a license once
Federal or State agency, or (3) to act, or refrain from a certification has been issued. It does not preclude the
acting contingent upon the recommendations or certifi- Commission from demanding water pollution controls
cation of any other Federal or State agency.” from its licensees which are more strict than those de-
manded by the applicable water quality standards of the
On its face, Section 104 seems quite unextraordinary, certifying agency.34 It is very important to understand
intended only to see that the general procedural reforms [*1125] these facts about WQIA. For all that Section 104
achieved in NEPA do not wipe out the more specific en- [**43] of NEPA does is to reaffirm other “specific statu-
vironmental controls imposed by other statutes. Ironi- tory obligations.” Unless those obligations are plainly
cally, however, the Commission argues that Section 104 mutually exclusive with the requirements of NEPA, the
in fact allows other statutes to wipe out NEPA. specific mandate of NEPA must remain in force. In other
words, Section 104 can operate to relieve an agency of its
Since the Commission places great reliance on Section NEPA duties only if other “specific statutory obligations”
104 to support its abdication to standard setting agen- clearly preclude performance of those duties.
cies, we should first note the section’s obvious limita-
tion. It deals only with deference to such agencies which Obedience to water quality certifications under WQIA
is compelled by “specific statutory obligations.” The is not mutually exclusive with the NEPA procedures. It
Commission has brought to our attention one “specific does not preclude performance of the NEPA duties. Wa-
statutory obligation”: the Water Quality Improvement Act ter quality certifications essentially establish a minimum
of 1970 (WQIA).33 That Act prohibits federal licensing condition for the granting of a license. But they need not
bodies, such as the Atomic Energy Commission, from end the matter. The Commission can then go on to per-
issuing licenses for facilities which pollute “the naviga- form the very different operation of balancing the over-
ble waters of the United States” unless they receive a all benefits and costs of a particular proposed project,
certification from the appropriate agency that compli- and consider alterations (above and beyond the applica-
ance with applicable water quality standards is reason- ble water quality standards) which would further reduce
ably assured. Thus Section 104 applies in some fashion environmental damage. Because the Commission can still
to consideration of water quality matters. But it definitely conduct the NEPA balancing analysis, consistent with
cannot support—indeed, it is not even relevant to—the WQIA, Section 104 does not exempt it from doing so.
Commission’s wholesale abdication to the standards and And it, therefore, must conduct the obligatory analysis
certifications of any and all federal, state and local agen- under the prescribed procedures.
cies dealing with matters other than water quality.
We believe the above result follows from the plain lan-
As to water quality, Section 104 and WQIA clearly re- guage of Section 104 of NEPA and WQIA. However,
quire obedience to standards set by other agencies. But the Commission argues that we should delve beneath the
33
The relevant portion is 33 U.S.C.A. § 1171. See Note 30 supra.
34
The relevant language in WQIA seems carefully to avoid any such restrictive implication. It provides that “each Federal agency shall insure
compliance with applicable water quality standards U.S.C.A. § 1171(a). It also provides that “no license or permit shall be granted until the
certification required by this section has been obtained or has been waived. No license or permit shall be granted if certification has been denied.”
33 U.S.C.A. § 1171(b) (1). Nowhere does it indicate that certification must be the final and only protection against unjustified water pollution—
a fully sufficient as well as a necessary condition for issuance of a federal license or permit.
We also take note of § 21(c) of WQIA, which states: “Nothing in this section shall be construed to limit the authority of any department or agency
pursuant to any other provision of law to require compliance with applicable water quality standards. * * *” 33 U.S.C.A. § 1171(c).
120
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
plain language and adopt a significantly different inter- in this Act for more restrictive and specific procedures
pretation. It relies entirely upon certain statements made established by law governing its activities.”39 The report
by Senator Jackson and Senator Muskie, the sponsors of does not suggest there that NEPA procedures should be
NEPA and WQIA respectively.35 Those statements indi- entirely abandoned, but rather that they should not be
cate that Section 104 was the product of a compromise “substituted” for more specific standards. In one rather
intended to eliminate any conflict between the two bills cryptic sentence, the analysis does muddy the waters
then in the Senate. The overriding purpose was to pre- somewhat, stating that “it is the intention that where there
vent NEPA from eclipsing obedience to more specific is no more effective procedure already established, the
standards under WQIA. Senator Muskie, distrustful of procedure of this act will be followed.”40 Notably, how-
“self-policing by Federal agencies which pollute or li- ever, the sentence does not state that in the presence of
cense pollution,” was particularly concerned that NEPA “more effective procedures” the NEPA procedure will
not undercut the independent role of standard setting be abandoned entirely. It seems purposefully vague, quite
agencies.36 Most of his and Senator Jackson’s comments possibly meaning that obedience to the certifications of
stop short of suggesting that NEPA would have no ap- standard setting agencies must alter, by supplementing,
plication in water quality matters; their goal was to pro- the normal “procedure of this act.”
tect WQIA, not to undercut NEPA. Our interpretation of
Section 104 is perfectly consistent with that purpose. This rather meager legislative history in our view, can-
not radically transform the purport of the plain words of
Yet the statements of the two Senators occasionally in- Section 104. Had the Senate sponsors fully intended to
dicate they were willing to go farther, to permit agencies allow a total abdication of NEPA responsibilities in wa-
such as the Atomic Energy Commission to forego at least ter quality matters—rather than a supplementing of them
some NEPA procedures in consideration of water qual- by strict obedience to the specific standards of WQIA—
ity. Senator Jackson, for example, said, “The compro- the language of Section 104 could easily have been
mise worked out between the bills provides that the li- changed. As the Supreme Court often has said, the legis-
censing agency will not have to make a detailed state- lative history of a statute (particularly such relatively
ment on water quality if the State or other appropriate meager and vague history as we have here) cannot radi-
agency has made a certification pursuant to [WQIA].”37 cally affect its interpretation if the language of the stat-
[*1126] Perhaps Senator Jackson would have required ute is clear. See, e.g., Packard Motor Car Co. v. NLRB,
some consideration and balancing of environmental 330 U.S. 485, 67 S. Ct. 789, 91 L. Ed. 1040 (1947);
costs—despite the lack of a formal detailed statement— Kuehner v. Irving Trust Co., 299 U.S. 445, 57 S. Ct. 298,
but he did not spell out his views. No Senator, other than 81 L. Ed. 340 (1937); Fairport, Painesville & Eastern R.
Senators Jackson and Muskie, addressed himself spe- Co. v. Meredith, 292 U.S. 589, 54 S. Ct. 826, 78 L. Ed.
cifically to the problem during floor discussion. Nor did 1446 (1934); Wilbur v. United States ex rel. Vindicator
any member of the House of Representatives.38 The sec- Consolidated Gold Mining Co., 284 U.S. 231, 52 S. Ct.
tion-by-section analysis of NEPA submitted to the Sen- 113, 76 L. Ed. 261 (1931). In a recent case interpreting a
ate clearly stated the overriding purpose of Section 104: veterans’ act, the Court set down the principle which must
that “no agency may substitute the procedures outlined govern our approach to the case before us:
35
The statements by Senators Jackson and Muskie were made, first, at the time the Senate originally considered WQIA. 115 Cong.Rec. (Part
21) at 29052-29056. Another relevant colloquy between the two Senators occurred when the Senate considered the Conference Report on NEPA.
115 Cong.Rec. (Part 30) at 40415-40425. Senator Muskie made a further statement at the time of final Senate approval of the Conference Report
on WQIA. 116 Cong.Rec. (daily ed.) S4401 (March 24, 1970).
36
115 Cong.Rec. (Part 21) at 29053.
37
Ibid. See also id. at 29056. Senator Jackson appears not to have ascribed major importance to the compromise. He said, “It is my understand-
ing that there was never any conflict between this section [of WQIA] and the provisions of [NEPA]. If both bills were enacted in their present
form, there would be a requirement for State certification, as well as a requirement that the licensing agency make environmental findings.” Id. at
29053. He added, “The agreed-upon changes mentioned previously would change the language of some of these requirements, but their sub-
stance would remain relatively unchanged.” Id. at 29055. Senator Muskie seemed to give greater emphasis to the supposed conflict between the
two bills. See id. at 29053; 115 Cong.Rec. (Part 30) at 40425; 116 Cong.Rec. (daily ed.) at S4401.
38
The Commission has called to our attention remarks made by Congressman Harsha. The Congressman did refer to a statement by Senator
Muskie regarding NEPA, but it was a statement regarding application of the Act to established environmental control agencies, not regarding the
relationship between NEPA and WQIA. 115 Cong.Rec. (Part 30) at 40927-40928.
39
Id. at 40420.
40
Ibid.
121
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
“Having concluded that the provisions of § 1 are clear environmental statement” in advance of operating license
and unequivocal on their face, we find no need to resort proceedings. 41
to the legislative history of the Act.Since the State has
placed such heavy reliance upon that history, however, The one thing the Commission has refused to do is take
we do deem it appropriate to point out that this history is any independent action based upon the material in the
at best inconclusive. It is true, as the State points out, environmental reports and “detailed statements.” What-
that Representative Rankin, as Chairman of the Com- ever environmental damage the reports and statements
mittee handling the bill on the floor of the House, ex- may reveal, the Commission will allow construction to
pressed his view during the course of discussion of the proceed on the original plans. It will not even consider
bill on the floor that the 1941 Act would not apply to requiring alterations in those plans (beyond compliance
[the sort of case in question]. But such statements, even with external standards which would be binding in any
when they stand alone, have never been regarded as suf- event), though the “detailed statements” must contain an
ficiently compelling to justify deviation from the plain analysis of possible alternatives and may suggest rela-
language of a statute. United States v. Oregon, 366 U.S. tively inexpensive but highly beneficial changes. Moreo-
643, 648, 81 S. Ct. 1278, 1281, 6 L. Ed. 2d 575 (1961). ver, the Commission has, as a blanket policy, refused to
(Footnotes omitted.) It is, after all, the plain language of consider the possibility of temporarily halting construc-
the statute which all the members of both houses of Con- tion in particular cases pending a full study of a facili-
gress must approve or disapprove. The courts should not ty’s environmental impact. It has also refused to weigh
allow that language to be significantly undercut. In cases the pros and cons of “backfitting” for particular facili-
such as this one, the most we should do to interpret clear ties (alteration of already constructed portions of the fa-
statutory wording is to see that the overriding purpose cilities in order to incorporate new technological devel-
behind the wording supports its plain meaning. We have opments designed to protect the environment). Thus re-
done that here. And we conclude that Section 104 of ports and statements will be produced, but nothing will
NEPA does not permit the sort of total abdication of re- be done with them. Once again, the Commission seems
sponsibility practiced by the Atomic Energy Commis- to believe that the mere drafting and filing of papers is
sion. enough to satisfy NEPA.
Petitioners’ final attack is on the Commission’s rules The Commission appears to recognize the severe limita-
governing a particular set of nuclear facilities: those for tion which its rules impose on environmental protection.
which construction permits were granted without con- Yet it argues that full NEPA consideration of alterna-
sideration of environmental issues, but for which oper- tives and independent action would cause too much de-
ating licenses have yet to be issued. These facilities, still lay at the preoperating license stage. It justifies its rules
in varying stages of construction, include the one of most as the most that is “practicable, in the light of environ-
immediate concern to one of the petitioners: the Calvert mental needs and ‘other essential considerations of na-
Cliffs nuclear power plant on Chesapeake Bay in Mary- tional policy’.”42 It cites, in particular, the “national power
land. crisis” as a consideration of national policy militating
against delay in construction of nuclear power facilities.
The Commission’s rules recognize that the granting of a
construction permit before NEPA’s effective date does The Commission relies upon the flexible NEPA man-
not justify bland inattention to environmental conse- date to “use all practicable means consistent with other
quences until the operating license proceedings, perhaps essential considerations of national policy.” As we have
far in the future. The rules require that measures be taken previously pointed out, however, that mandate applies
now for environmental protection. Specifically, the Com- only to the substantive guidelines set forth in Section
mission has provided for three such measures during the 101 of the Act. See page 1114 supra. The procedural
preoperating license stage. First, it has required that a duties, the duties to give full consideration to environ-
condition be added to all construction permits, “when- mental protection, are subject to a much more strict stand-
ever issued,” which would oblige the holders of the per- ard of compliance. By now, the applicable principle
mits to observe all applicable environmental standards should be absolutely clear.
imposed by federal or state law. Second, it has required
permit holders to submit their own environmental report NEPA requires that an agency must—to the fullest ex-
on the facility under construction. And third, it has initi- tent possible under its other statutory obligations—con-
ated procedures for the drafting of its staff’s “detailed sider alternatives to its actions which would reduce en-
41.10 C.F.R. § 50, App. D, paras. 1, 14.
42.Brief for respondents in No. 24,871 at 59.
122
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
vironmental damage. That principle establishes that con- velopments, at the operating license stage. In order that
sideration of environmental matters must be more than the pre-operating license review be as effective as possi-
a pro forma ritual. Clearly, it is pointless to “consider” ble, the Commission should consider very seriously the
environmental costs without also seriously considering requirement of a temporary halt in construction pending
action to avoid them. Such a full exercise of substan- its review and the “backfitting” of technological innova-
tive discretion is required at every important, appropri- tions. For no action which might minimize environmen-
ate and nonduplicative stage of an agency’s proceed- tal damage may be dismissed out of hand. Of course,
ings. See text at page 1114 supra. final operation of the facility may be delayed thereby.
But some delay is inherent whenever the NEPA consid-
The special importance of the pre-operating license eration is conducted—whether before or at the license
stage is not difficult to fathom. In cases where environ- proceedings. It is far more consistent with the purposes
mental costs were not considered in granting a construc- of the Act to delay operation at a stage where real envi-
tion permit, it is very likely that the planned facility ronmental protection may come about than at a stage
will include some features which do significant dam- where corrective action may be so costly as to be impos-
age to the environment and which could not have sur- sible.
vived a rigorous balancing of costs and benefits. At the
later operating license proceedings, this environmental Thus we conclude that the Commission must go farther
damage will have to be fully considered. But by that than it has in its present rules. It must consider action, as
time the situation will have changed radically. Once a well as file reports and papers, at the pre-operating li-
facility has been completely constructed, the economic cense stage. As the Commission candidly admits, such
cost of any alteration may be very great. In the lan- consideration does not amount to a retroactive applica-
guage of NEPA, there is likely to be an “irreversible tion of NEPA. Although the projects in question may
and irretrievable commitment of resources,” which will have been commenced and initially approved before
inevitably restrict the Commission’s options. Either the January 1, 1970, the Act clearly applies to them since
licensee will have to undergo a major expense in mak- they must still pass muster before going into full opera-
ing alterations in a completed facility or the environ- tion. All we demand is that the environmental review be
mental harm will have to be tolerated. It is all too prob- as full and fruitful as possible.
able that the latter result would come to pass.
We hold that, in the four respects detailed above, the
By refusing to consider requirement of alterations until Commission must revise its rules governing considera-
construction is completed, the Commission may effec- tion of environmental issues. We do not impose a harsh
tively foreclose the environmental protection desired burden on the Commission. For we require only an exer-
by Congress. It may also foreclose rigorous considera- cise of substantive discretion which will protect the en-
tion of environmental factors at the eventual operating vironment “to the fullest extent possible. “No less is re-
license proceedings. If “irreversible and irretrievable quired if the grand congressional purposes underlying
commitment[s] of resources” have already been made, NEPA are to become a reality.
the license hearing (and any public intervention therein)
may become a hollow exercise. This hardly amounts to Remanded for proceedings consistent with this opinion.
consideration of environmental values “to the fullest
extent possible.” APPENDIX
A full NEPA consideration of alterations in the original Public Law 91-190
plans of a facility, then, is both important and appropri-
ate well before the operating license proceedings. It is 91st Congress, S. 1075
not duplicative if environmental issues were not con-
sidered in granting the construction permit. And it need January 1, 1970
not be duplicated, absent new information or new de-
43
The courts which have held NEPA to be nonretroactive have not faced situations like the one before us here—situations where there are
two, distinct stages of federal approval, one occurring before the Act’s effective date and one after that date. See Note, supra Note 25.
The guidelines issued by the Council on Environmental Quality urge agencies to employ NEPA procedures to minimize environmental
damage, even when approval of particular projects was given before January 1, 1970: “To the maximum extent practicable the section
102(2) (C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they
arise from projects or programs initiated prior to enactment of [NEPA] on January 1, 1970. Where it is not practicable to reassess the basic
course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental conse-
quences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the
project or program.” 36 Fed.Reg. at 7727.
123
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
An Act may-
To establish a national policy for the environment, to (1) fulfill the responsibilities of each generation as trus-
provide for the establishment of a Council on Environ- tee of the environment for succeeding generations;
mental Quality, and for other purposes.
(2) assure for all Americans safe, healthful, productive,
Be it enacted by the Senate and House of Representa- and esthetically and culturally pleasing surroundings;
tives of the United States of America in Congress as-
sembled, That this Act may be cited as the “National (3) attain the widest range of beneficial uses of the en-
Environmental Policy Act of 1969.” vironment without degradation, risk to health or
safety, or other undesirable and unintended conse-
PURPOSE quences;
Sec. 2. The purposes of this Act are: To declare a na- (4) preserve important historic, cultural, and natural as-
tional policy which will encourage productive and en- pects of our national heritage, and maintain, wher-
joyable harmony between man and his environment; to ever possible, an environment which supports diver-
promote efforts which will prevent or eliminate damage sity and variety of individual choice;
to the environment and biosphere and stimulate the health
and welfare of man; to enrich the understanding of the (5) achieve a balance between population and resource
ecological systems and natural resources important to use which will permit high standards of living and a
the Nation; and to establish a Council on Environmental wide sharing of life’s amenities; and
Quality.
(6) enhance the quality of renewable resources and ap-
proach the maximum attainable recycling of
depletable resources.
TITLE I
(c) The Congress recognizes that each person should
enjoy a healthful environment and that each person
DECLARATION OF NATIONAL has a responsibility to contribute to the preservation
ENVIRONMENTAL POLICY and enhancement of the environment.
Sec. 102. The Congress authorizes and directs that, to
Sec. 101. (a) The Congress, recognizing the profound the fullest extent possible: (1) the policies, regulations,
impact of man’s activity on the interrelations of all and public laws of the United States shall be interpreted
components of the natural environment, particularly the and administered in accordance with the policies set forth
profound influences of population growth, high-density in this Act, and (2) all agencies of the Federal Govern-
urbanization, industrial expansion, resource exploitation, ment shall—
and new and expanding technological advances and
recognizing further the critical importance of restoring (A) utilize a systematic, interdisciplinary approach which
and maintaining environmental quality to the overall will insure theintegrated use of the natural and so-
welfare and development of man, declares that it is the cial sciences and the environmental design arts in
continuing policy of the Federal Government, in planning and in decisionmaking which may have an
cooperation with State and local governments, and other impact on man’s environment;
concerned public and private organizations, to use all
practicable means and measures, including financial and (B) identify and develop methods and procedures, in
technical assistance, in a manner calculated to foster and consultation with the Council on Environmental
promote the general welfare, to create and maintain Quality established by title II of this Act, which will
conditions under which man and nature can exist in insure that presently unquantified environmental
productive harmony, and fulfill the social, economic, and amenities and values may be given appropriate con-
other requirements of present and future [**60] sideration in decisionmaking along with economic
generations of Americans. and technical considerations;
(b) In order to carry out the policy set forth in this Act, (C) include in every recommendation or report on pro-
it is the continuing responsibility of the Federal posals for legislation and other major Federal ac-
Government to use all practicable means, consistent tions [**62] significantly affecting the quality of the
with other essential considerations of national policy, human environment, a detailed statement by the re-
to improve and coordinate Federal plans, functions, sponsible official on—
programs, and resources to the end that the Nation
124
CALVERT CLIFFS’ COORDINATING COMMITTEE, I NC. V U NITED STATES ATOMIC E NERGY C OMMISSION
(i) the environmental impact of the proposed action, eration in anticipating and preventing a decline in
the quality of mankind’s world environment;
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented, (F) make available to States, counties, municipalities,
institutions, and individuals, advice and information
(iii) alternatives to the proposed action, useful in restoring, maintaining, and enhancing the
quality of the environment;
(iv) the relationship between local short-term uses of
man’s environment and the maintenance and en- (G) initiate and utilize ecological information in the plan-
hancement of long-term productivity, and ning and development of resource-oriented projects;
and
(v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed (H) assist the Council on Environmental Quality estab-
action should it be implemented. lished by title II of this Act.
Prior to making any detailed statement, the responsible Sec. 103. All agencies of the Federal Government shall
Federal official shall consult with and obtain the com- review their present statutory authority, administrative
ments of any Federal agency which has jurisdiction by regulations, and current policies and procedures for the
law or special expertise with respect to any environmen- [**64] purpose of determining whether there are any
tal impact involved. Copies of such statement and the deficiencies or inconsistencies therein which prohibit full
comments and views of the appropriate Federal, State, compliance with the purposes and provisions of this Act
and local agencies, which are authorized to develop and and shall propose to the President not later than July 1,
enforce environmental standards, shall be made avail- 1971, such measures as may be necessary to bring their
able to the President, the Council on Environmental authority and policies into conformity with the intent,
Quality and to the public as provided by section 552 of purposes, and procedures set forth in this Act.
title 5, United States Code, and shall accompany the pro-
posal through the existing agency review processes; Sec. 104. Nothing in Section 102 or 103 shall in any
way affect the specific statutory obligations of any Fed-
(D) study, develop, and describe appropriate alternatives eral agency (1) to comply with criteria or standards of
to recommended courses of action in any proposal environmental quality, (2) to coordinate or consult with
which involves unresolved conflicts concerning al- any other Federal or State agency, or (3) to act, or refrain
ternative uses of available resources; from acting contingent upon the recommendations or
certification of any other Federal or State agency.
(E) recognize the worldwide and long-range character
of environmental problems and, where consistent Sec. 105. The policies and goals set forth in this Act are
with the foreign policy of the United States, lend supplementary to those set forth in existing authoriza-
appropriate support to initiatives, resolutions, and tions of Federal agencies.
programs designed to maximize international coop-
125
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
DECISION IN SIERRA CLUB ET AL V. COLEMAN AND
TIEMANN (NATIONAL ENVIRONMENTAL POLICY ACT;
ENVIRONMENTAL IMPACT ASSESSMENT OF DARIEN GAP
HIGHWAY THROUGH PANAMA AND COLUMBIA)*
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB, :
NATIONAL AUDUBON SOCIETY, :
FRIENDS OF THE EARTH, INC., :
INTERNATIONAL ASSOCIATION OF :
GAME, FISH AND CONSERVATION :
COMMISSIONERS, :
Plaintiffs :
v. : Civil Action
: No. 75-1040
WILLIAM T. COLEMAN, JR., :
NORBERT T. TIEMANN, :
De fe n d an t s :
MEMORANDUM AND ORDER America with the Inter-American Highway was author-
ized by Congress in 1970, P.L. 91-605, 23 U.S.C. § 216.
This matter is before the Court, pursuant to Rule 65 of The actual administration of the project was left to the
the Federal Rules of Civil Procedure, on plaintiffs’ Mo- Secretary of Transportation, 23 U.S.C. § 216(b). In April
tion For A Preliminary Injunction. Having considered of 1974, well after the project was underway and well
the papers submitted in support thereof, the opposition after the selection of the precise route of the highway
thereto, and the arguments of counsel, the Court makes had been made, the Federal Highway Administration
the following findings of fact and conclusions of law. (FHWA) prepared and circulated to certain parties a draft
“Environmental Impact Assessment” relating to the con-
This case arises under the National Environmental Policy struction of the highway. In December of 1974 FHWA
Act (NEPA), 42 U.S.C. §§ 4321 et seq. The defendants, issued a final “Assessment”, very similar to the draft.
the Department of Transportation and the Federal High- The Sierra Club and three other environmental organi-
way Administration, are currently engaged in the initial zations have now brought this action seeking to enjoin
steps of construction of the “Darien Gap Highway” any further action on the project by FHWA, claiming
through Panama and Columbia.1 Construction of a high- that the preparation and issuance of the “Assessment”
way to link the Pan American Highway system of South satisfied neither the procedural nor the substantive re-
1
Those two countries together bear one-third of the cost of the road; the United States bears two-thirds.
126
SIERRA CLUB V COLEMAN
quirements of NEPA. For the reasons outlined below, tosa absent the most stringent of control programs, and a
the Court agrees, and is compelled to grant the prelimi- consequent discussion of the evolving plans for prevent-
nary injunction. ing transmission of the disease to North America, there
is no discussion whatsoever of the environmental im-
A number of courts have previously considered the re- pact upon the United States of a breakdown of such a
quirements for a preliminary injunction in the case of an control program. Considering that, according to the un-
alleged deficiency in compliance with NEPA require- disputed record in this case, aftosa is the most serious
ments. This Court agrees that “when ... federal statutes existing livestock disease, which if it spread into the
have been violated, it has been the longstanding rule that United States could result in the destruction of up to
a court should not inquire into the traditional require- twenty-five percent of North American livestock and an
ments for equitable relief”. Atchison, Topeka, and Santa economic loss of ten billion dollars, as well as the ex-
Fe Railway Co. v. Callaway, 392 F. Supp. 610, 623 tinction of such endangered species as the American bi-
(D.D.C., 1974). Accord, Lathan v. Volpe. 455 F.2d 1111, son, it seems evident that an impact statement which fails
1116 (9th Cir., 1971); Keith v. Volpe, 352 F. Supp. 1324, to discuss this possibility is fatally deficient. No matter
1349 (C.D. Cal., 1972), aff’d., 506 F.2d 696 (9th Circ., how well-planned the control program may be, there will
1974, cert. denied, 420 U.S. 908, 95 Sup. Ct. 826 (1975). always remain at least the possibility that it may not prove
In each of these NEPA cases the court took the position successful. Discussion of the consequences of failure is
that it was not necessary to the granting of a preliminary therefore essential, for otherwise the public, and particu-
injunction to balance the equities, and approved the is- larly those most interested in such a possibility, will not
suance of an injunction based on deficiencies in compli- be alerted to the problem and will not make the informed
ance with NEPA requirements. These cases derive from comments which FHWA is required to consider in its
the decision of the Supreme Court in United States v. decision-making process.3
City and Country of San Francisco, 310 U.S. 16, 60 S.Ct.
749 (1940), reh. denied 310 U.S. 657, 60 S. Ct 1071 The third defect in the Assessment, again of a substan-
(1940), in which the Supreme Court approved the grant- tive nature, is its failure to adequately discuss possible
ing of an injunction without a balancing of the equities alternatives to the route that has been chosen for the high-
in order to give effect to a declared policy of Congress, way, as required by § 102(2)(C)(iii) of NEPA, 42 U.S.C.
embodied in legislation. § 4332(C)(iii). While the statement does mention briefly
the “no-build” alternative, without discussing its rela-
In the present case, the Court finds three principal defi- tive environmental impact, the bulk of the section of the
ciencies in FHWA’s compliance with the NEPA require- final Assessment dealing with “Alternatives To The Pro-
ments. First, FHWA failed to circulate either its draft or posed Project” is devoted to an analysis of why the short
final Assessment to the Environmental Protection Agency (“Atrato”) route is preferable to the longer (“Choco”)
for its comments, as required by 42 U.S.C. §§ 1856h-7 route from the point of view of the engineering and cost.
and 4332(C). There is no question but that the environ- Unfortunately, none of the discussion therein is addressed
mental effects of major highway construction is within to the environmental impact of possible alternatives to
the expertise of EPA, and that agency might well have the route actually selected (the Atrato route).4 While, in
had valuable comments which could have affected light of the express Congressional mandate that a high-
FHWA’s judgment as the Assessment was considered in way be built, it seems unnecessary for the statement to
the decision-making process in the selection of the high- discuss possible non-land alternatives, it is indispensa-
way’s route. Indeed, EPA’s response to the Assessment ble for the statement to discuss at least the relative envi-
(when it finally learned of its existence) suggests a dis- ronmental impacts of other land routes, such as the Choco
cussion by FHWA of the domestic consequences of the route, though they might cost more or be less feasible
transmission of aftosa into the United States, the lack of from an engineering perspective. Such a discussion of
which is one of the very deficiencies found by this Court the environmental impact of alternate routes will also
(below) to require the granting of an injunction.2 allow FHWA to discuss more fully the impact of the road
upon the lives of the Choco and Cuna Indians, and the
The second major defect in the “Assessment” is a sub- opportunities which alternate routes may present for
stantive one: the failure of that document to adequately avoiding the “cultural extinction” so casually predicted
discuss the problems of the transmission of aftosa, or by the Assessment for those tribes as a result of the Atrato
“foot-and-mouth” disease. While there is in the docu- route.5
ment a recognition of the probable transmission of af-
2
See Appendix J to plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ motion for a Preliminary Injunction.
3
See also Appendix E to plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for a Preliminary Injunction.
4
Exhibit A to defendants’ Memorandum in Opposition to Motion For Preliminary Injunction, pp. 182-187.
5
Exhibit A to defendants’ Memorandum in Opposition to Motion For preliminary Injunction, p. 171
127
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Finally, the defendants in their opposition to plaintiffs’ District of Columbia Redevelopment Land Agency, 162
motion make no claim that an environmental impact state- U.S. App. D.c. 366 at 376, 499 F. 2d 502 at 512 (1974).
ment is not required, but rather contend that their docu-
ment is the functional equivalent of an environmental It is therefore, by the Court, this 17th day of October
impact statement as defined by NEPA. While it is unim- 1975.
portant whether this document is labelled “Statement”
or “Assessment”, the document in question is clearly not ORDERED that the Defendants, their agents, officers,
what NEPA demands. The law in this jurisdiction is clear: servants, employees, and attorneys, and any person in
“... the Section 102 duties are not inherently flexible. active concert or participation with them are hereby en-
They must be complied with to the fullest extent, unless joined from entering into any contract, obligating any
there is a clear conflict of statutory authority. Consid- funds, expending any funds, or taking any other action
erations of administrative difficulty, delay or economic whatsoever in furtherance of construction of the Darien
cost will not suffice to strip the section of its fundamen- Gap Highway, pending final hearing and disposition of
tal importance”. Calvert Cliffs’ Coordinating Commit- this action, or unless and until the Defendants have taken
tee, Inc. v. United States Atomic Energy Commission, all action necessary to comply fully with the substantive
146 U.S. App.D.C. 33, at 39, 449 F.2d 1109, at 1115 and procedural requirements of the National Environ-
(1971) (emphasis in original). Here defendants have mental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat.
clearly not discharged those duties. Despite its elabo- 852. 42 U.S.C. § 4321 et seq.; United States Department
rate table of contents and a generous ration of environ- of Transportation Order 5610.1A October 4, 1974, re-
mentally irrelevant “filler”, the Assessment is not an ad- vised, Order 5610.1B, 39 Fed. Reg. 35235 (September
equate environmental impact statement, nor was the proc- 20, 1974); and Federal Highway Administration Policy
ess which led to its preparation what NEPA contemplates. and Procedure Memorandum 90-1, September 7, 1972,
Indeed, it is clear that the decision to build the highway revised effective November 29, 1974, 23 C.F.R. Parts
in the Atrato route was made well before the statement 771, 790 and 795, 39 Fed. Reg. 41804 (December 2,
was begun,6 thus ignoring Congress’ intent that “deci- 1974), including, but not limited to, the preparing (in-
sions about federal actions ... be made only after respon- cluding any necessary studies), circulating for comment,
sible decision-makers had fully adverted to the environ- making available to the public, and considering a de-
mental consequences of the actions, and had decided that tailed statement of the environmental impact of the De-
the public benefits flowing from the actions outweighed fendants’ action to construct a highway through the
their environmental costs. 7 Thus the harm with which Darien Gap region, and it is further
the courts must be concerned in NEPA cases is not,
strictly speaking, harm to the environment, but rather the ORDERED that the United States marshal shall serve a
failure of decision-makers to take environmental factors copy of this order forthwith upon the Defendants.
into account in the way that NEPA mandates”. Jones v.
JUDGE
6
See 1968 Report of the Darien Subcommittee, Final Conclusions Regarding Location, Design and Construction of the Pan American High-
way Through the “Darien Gap”. In The Republics Of Panama and Columbia, Exhibit C to defendants’ Memorandum in Opposition to Motion
For Preliminary Injunction, Affidavit of Wesley S. Mendenhall, Jr.
7
Footnote omitted.
128
SIERRA CLUB V COLEMAN
MEMORANDUM AND ORDER IN
[September 23, 1976] (National Environmental Policy Act; Environmental Impact
Assessment of Darien Gap Highway through Panama and Columbia)*
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB, et al., — Plaintiffs,
v.
WILLIAM T. COLEMAN, et al., — Defendants
CIVIL ACTION NO. 75-1040
MEMORANDUM AND ORDER problems of control of aftosa, or foot-and-mouth disease
(FMD), of the environmental impact of possible alterna-
This matter is now before the Court on plaintiffs’ motion tive routes for the highway, and of the effects of the high-
for an extension of the preliminary injunction hereto- way on the Cuna and Choco Indians inhabiting the area
fore entered in this case and defendants’ opposition through which the highway is expected to be built. While
thereto. this case was last before the Court eleven months the FEIS is in general a significant improvement over
ago, at which time the Court found that defendants had the earlier assessment, and while the discussion of those
failed to comply with the procedural and substantive re- three topics has been modified to various degrees, the
quirements of the national Environmental Policy Act FEIS still fails to adequately examine the environmental
(NEPA), 42 U.S.C. 4321 et seq., in their preparation of impact of the proposed Darien Gap highway with regard
an environmental impact assessment relating to their con- to those mattes.
struction of the Darien Gap Highway through Panama
and Columbia. As a result, the Court enjoined further The premise form which any environmental impact state-
work on the project until such time as compliance with ment must begin is the recognition that its goal is to pro-
NEPA had been effected, 405 F. Supp. 53. Defendants vide a detailed discussion sufficient to allow the agency
have now complied with the procedural requirements of decision-maker to fully consider in his or her decisional
NEPA and produced a Final Environmental Impact State- calculus the possible environmental effects of various
ment for the project, and now assert that they may pro- alternative paths the agency might choose to pursue with
ceed with the project. Plaintiffs content that the FEIS is respect to a given project. See, Calvert Cliffs Coordi-
defective in certain critical areas, and argue that the in- nating Committee v. Atomic Energy Commission, 449
junction should therefore be extended. After an exami- F.2d 1109 (C.A.D.C., 1971); Scientists Institute For Pub-
nation of the FEIS in light of the parties’ arguments, the lic Information v. Atomic Energy Commission, 481 F.2D
Court concludes that the statement is indeed so deficient 1079 (C.A.D.C., 1973); Natural Resources Defense
in certain basic respects that the injunction must be ex- Council v. Morton, 458 F.2d 827 (C.A.D.C., 1972); Caro-
tended until those deficiencies are remedied. lina Environmental Study Group v. United States, 510
F.2d 796 (C.A.D.C., 1975). These cases also establish
When this matter was last before the Court, the earlier that the degree of detail required in the analysis depends
assessment was found to lack sufficient discussion of the on the circumstances and nature of the project involved.
*[The Court’s Memorandum and Order of October 17, 1975, appear at 14 I.L.M. 1425 (1975).
[A memorandum issued by the U.s. council on Environmental Quality with regard to applying the environmental impact statement
requirement to environmental impacts abroad appears at I.L.M. page 1427].
129
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
In the present case, the defendants propose to build the edge the balancing mandated by NEPA cannot be seri-
first major highway through a region until now almost ously undertaken.
wholly undisturbed by an encroachment of modern civi-
lization, an area by all accounts constituting an ecosys- The second fundamental deficiency in the FEIS is its
tem virtually unique to the world. A more paradigmatic treatment of the impact of the project upon the lies of
example of the need for thorough and strict application the cuna and Choco Indians living in the Darien Gap
of the requirements of NEPA could hardly be found, yet region. The initial environmental impact assessment
the defants’ compliance continues to reflect a minimalist before the Court predicted possible cultural extinction
approach to those requirements. while this may be due for these tribes. The current statement again treats their
to their failure to recognize NEPA’s applicability for lit- fate in a cursory and casual manner, and makes no at-
erally years during the earlier phases of the project, that tempt at serious anthropological or ethnographic analy-
failure does not justify any relaxation of those require- sis of the impact of secondary development resulting from
ments now. the highway upon these people. It asserts that the Chocos
in Panama “are adaptable and will probably become in-
As was the case when this matter was first before the corporated . . . into the national economy”, whereas the
Court, the most significant environmental problem re- Cuna “are more traditional and are expected to retain
lated to the proposed highway is the transmission of af- their cultural identity”, FEISD at 6-27. Nowhere does
tosa (FMD) into North America which will occur in the the document deal with the highway’s impact in signifi-
absence of stringent control measures along the high- cantly more dept. It asserts that the “Cuna will be little
way and in Panama, Colombia, and other Central Ameri- affected culturally by the influx of populations and the
can nations. This problem, as well as the general back- economic growth of the region as long as extensive for-
ground of the project, is more fully described in the est habitat is maintained. Their traditional village life
Court’s earlier opinion, 405 F. Supp. 53. The FEIS rec- and strong community organization will resist change as
ognizes the potentially disastrous results of an outbreak it has always done”. FEIS at 6-28. the FEIS then com-
of FMD in the United States alone, estimating that it pletely vitiates the predictive value of these generaliza-
might create a loss of $10 billion in domestic livestock tions by concluding that if “the colonists are permitted
in the first year alone, as well s possibly causing the ex- to cut trees without restraint, they will cause drastic al-
tinction of certain endangered livestock species. yet the teration of the Cuna culture”, and that the “extent of ac-
statement concludes that the “increased risk of such an tual changes depends entirely upon the implementation
outbreak due to the construction of the Darien Gap High- of the proposed OAS land use plan”. FEIS at 6-28. the
way is considered to be insignificant in light of the con- statement does not seriously discuss the contents of that
trol programs now in existence in the U.S., Central plan or its current status or the prospects for its approval
America, Mexico and Panama and the control program or enforcement. With regard to the Chocos in Panama,
now being developed in through the Darien Gap, a ra- the statement notes that they will be similarly affected in
tional evaluation of the impact of the bridging of the gap the few places where they have started to build villages,
by the highway on upper Central America and North but the majority of the “transitory riverine choco, who
America requires a clear understanding of the probable build temporary shelters along stream banks, will sim-
results of such a northward transmission of FMD. That ply move farther upstream when the pressures of popu-
understanding in turn requires an examination of the pros- lation become too great”. Id. This statement too is un-
pects for controlling the disease as it migrates north-ward, dermined by the qualification that the extent of the
as well as of the actual impact of FMD in the affected changes will be determined by the possible application
areas. While the FEIS does adequately describe the dev- of the OAS land use plan. With regard to consideration
astation that might result form an epizootic (animal epi- of the impact upon the two tribes in Colombia, the state-
demic) of the disease in these areas, it entirely fails to ment is limited to the following analysis: “The Cuna have
consider the prospects for control of the disease in such lived as much as they do today for several centuries, and
areas. The Statement notes that substantial funds might their traditional life and strong political organization and
be required to control the disease if any outbreaks should traditional solidarity have resisted first the Spaniards and
occur, but gives no indication of the magnitude of ex- then the Colombians, will continue to resist change. The
penditures which would correspond to any of the vari- Chocos will be little affected”. FEIS at 6-31.
ous scenarios imaginable. Indeed, estimates by various
commentators suggest that the funding now anticipated This treatment does not satisfy the requirements of NEPA.
for aftosa control associated with the development of the While even the certainty of cultural extinction for both
highway may be too low by a factor of as much as one tribes would not necessarily preclude approval of the
hundred or more. In order for the agency to give any project, NEPA requires that the agency make such a deci-
meaningful consideration to the merit of the proposed sion knowingly and with due regard for its environmental
project, it must know what the possible funding require- consequences. In light of the critical comments in re-
ments associated with the project may be and whether sponse to the draft EIS, particularly those of Artuo Munoz
such funds are likely to be available. without such knowl- of the Stanford University Center for Latin American Stud-
130
SIERRA CLUB V COLEMAN
ies, FEIS at 12.10, and the predictable pressures for sec- EUROPEAN COMMUNITIES:
ondary development that will accompany completion of COUNCIL RESOLUTION ON
the highway, the FEIS simply does not provide the infor-
mation which would be needed for such informed bal-
EXTERNAL ASPECTS OF THE
ancing and decision-making in this regard. The specula- CREATION OF A 200-MILE
tion and conjecture with which the document’s discus- FISHING ZONE*
sion is replete are not justified by any limitations of avail-
able information sources or analytical tools, and do not
satisfy the agency’s obligations under NEPA. [Approved by the Council by written
procedure, November 3, 1976]
Finally, the statement’s discussion of possible alterna-
tives to the Atrato route chosen in Colombia continues Council Resolution on Certain External As-
to be inadequate. When this matter was before the Court pects of the Creation of a 200-Mile Fishing
last October, the earlier assessment’s treatment of alter- Zone in the Community with Effect from 01
native routes was found to be critically deficient. The January 1977.
comments made by the Court at that time are equally
applicable to the current version, which is not signifi- With reference to its declaration of 27 July 1976 on the
cantly improved; the discussion is still devoted to an creation of a 200-mile fishing zone in the Community,
analysis of why the shooter (Atrato) route is preferable the Council considers that the present circumstances, and
to the longer (Choco) route from the point of view of particularly the unilateral steps taken or about to be taken
engineering and cost. Unfortunately, little of the discus- by certain third countries, warrant immediate action by
sion therein is addressed to the environmental impact of the Community to protect its legitimate interests in the
possible alternatives to the route actually selected (the maritime regions most threatened by the consequences
Atrato route). Such a discussion of the environmental of these steps to extend fishing zones, and that the meas-
impacts of other land routes, such as the Choco route, is ures to be adopted tot his end should be based on the
indispensable, though they might cost more or be less guidelines which are emerging within the iii-rd United
feasible form an engineering perspective. Accordingly, Nations Conference on the Law of the Sea.
it is by the Court this 23rd day of September, 1976.
It agrees that, as from 01 January 1977, member states
ORDERED, that plaintiffs’ Motion To Continue In Ef- shall, by means of concerted action, extend the limits of
fect The Existing Preliminary Injunction be, and hereby their fishing zones to 200 miles off their North Sea and
is, granted; and North Atlantic coasts, without prejudice to similar ac-
tion being taken for the other fishing zones within their
FURTHER ORDERED, that defendants, their agents, of- jurisdiction such as the mediterranean.
ficers, servants, employees, and attorneys, and any per-
sons in active concert or participation with them, are It also agrees that, as form the same date, the exploita-
hereby enjoined from entering into any contract, obligat- tion of fishery resources in these zones by fishing ves-
ing any funds, expending any funds, or taking any other sels of third countries shall be governed by agreements
action whatsoever in furtherance of construction of the between the Community and the third countries con-
Darien Gap highway, except as specified by the Court’s cerned.
Order of December 23, 1975, pending final hearing and
disposition of this action, or unless and until defendants It agrees, furthermore, on the need to ensure, by means
have fully and adequately supplemented their Final Envi- of any appropriate Community agreements, that Com-
ronmental Impact Statement, in the manner prescribed by munity fishermen obtain fishing rights in the waters of
law for the initial preparation of such statements, to rem- third countries and that the existing rights are retained.
edy the deficiencies outlined in this memorandum. In pre-
paring such a supplement, defendants may conduct any To this end, irrespective of the common action to be taken
on-site studies that may be required to allow full and in- in the appropriate international bodies, it instructs the
formed consideration of the issues involved. Commission to start negotiations forthwith with the third
countries concerned in accordance with the Council’s di-
IT IS SO ORDERED. rectives. These negotiations will be conducted with a
view to concluding, in an initial phase, outline agree-
Signed ments regarding the general conditions to be applied in
future for access to resources, both those situated in the
JUDGE fishing zones of these third countries and those in the
fishing zones of the member states of the Community.
131
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
UNITED STATES: COUNCIL than an “interpretation” of NEPA. For CEQ, it is an in-
ON ENVIRONMENTAL QUAL- terpretation of something contemplated by the law as en-
acted. A recent U.S. District Court opinion stayed the
ITY MEMORANDUM TO U.S. construction of the Pan American Highway across the
AGENCIES ON APPLYING THE Darien Gap in Panama until an adequate environmental
ENVIRONMENTAL IMPACT impact statement was filed by the Department of Trans-
STATEMENT REQUIREMENT portation, the funding agency. [The opinion is reproduced
TO ENVIRONMENTAL IM- at I.L.M. page 1417]. Among the deficiencies of the state-
ment, according to the Court, was the failure to adequately
PACTS ABROAD* [September consider the effects of the highway on Indians along the
24, 1976] route—an effect wholly within another country.
In the U.S., the views of CEQ have special significance
Introductory Note** for judicial interpretation of the statute. This was the
view of Justice Douglas sitting as a Circuit Justice in the
In the letter form former Council on Environmental Qual- case of Warm Springs Task Force vs. Gribble.1 In order-
ity (CEQ) Chairman russell W. Peterson, and the memo- ing a stay of a Federal action until the Circuit Court of
randum that accompanies it, the Council interprets the Appeals could hear an appeal, Justice Douglas said, “The
National Environmental Policy Act (NEPA) to include Council on Environmental Quality, ultimately responsi-
impact statements for Federal actions having significant ble for administration of the NEPA and most familiar
impact on the environment whether the impact is within with its requirements for Environmental Impact State-
the U.S., in other countries in which the activity is car- ments, has taken the unequivocable position that the state-
ried out or has an effect, or in areas, such as the high ment in this case is deficient, despite the contrary con-
seas, outside the jurisdiction of any country. clusions of the District Court. That agency determina-
tion is entitled to great weight”. It remains to be seen
Since 1970, when NEPA first went into force, it has been what ultimate effect will be given to this memorandum
a controversial tool for requiring planning and evalua- but it does not represent an interpretation, which, as the
tion of potential environmental impacts from Federal memorandum itself indicates, has been followed in the
action. the requirement for these statements is found in past. The Atomic Energy Commission, the Department
the National Environmental Policy Act (42 USC 4321- of State and other agencies have filed environmental
4347). Section 102(2)(c) requires that all Federal agen- impact statements for activities having a potential effect
cies shall “include in every recommendation or report in other countries,2 and the State Department has filed
on proposals for legislation and other major Federal ac- impact statements preparatory to the U.S. entering into
tions significantly affecting the quality of human envi- negotiations on international agreements which could
ronment, a detailed statement . .. on the environmental affect areas outside national jurisdiction (the Ocean
impact of the proposed action”. Additionally, NEPA calls Dumping Convention and the Law of the Sea Confer-
for Federal agencies to “recognize the worldwide and ence being two examples),3 and AID has revised its own
long-range character of environmental problems” which procedures to include a range of its activities in the NEPA
gives further scope of this memorandum. process. 4 The AID regulations were issued in accord-
ance with the stipulation and court order of a U.S. Dis-
This memorandum, like NEPA itself, will not be with- trict Court in a case concerning the impact of pesticides
out controversy. Some Federal agencies may well feel on the environment [see 15 I.L.M. 679 (1976)].
that the memorandum constitutes an “extension” rather
September 24, 1976
* [Reproduced from the letter and memorandum provided by the Council on Environmental Quality of the Executive Office of the President of
the United States.
**[The Introductory Note was prepared for International Legal Materials by Robert E. Stein, Director, North American Office, International
Institute for Environment and Development].
1
ERC 19737 (1974).
2
CEQ 5th Annual Report (1974) at 399-400.
3
Id at 392, 399; for a list of Agency Regulations see CEQ 7th Annual Report (1976) at 128-131.
4
Noted at 15 I.L.M. 984 (1976).
* [Reprinted from the text provided by the U.S. Department of State.
[The proposed regulation on a Community system for the conservation and management of fishery resources, submitted by the Commission to the
Council on October 8, 1976, appears at I.1.M. page 1376.]
132
SIERRA CLUB V COLEMAN
MEMORANDUM TO HEADS OF AGENCIES ON APPLYING
THE EIS REQUIREMENT TO ENVIRONMENTAL
IMPACTS ABROAD
In recent months the Council has been involved in dis- We recommend that agencies which take actions abroad
cussions with several agencies concerning the applica- and/or which take actions in the United States with po-
tion of the EIS requirement in NEPA to U.S. actions with tential significant environmental impacts abroad consult
significant environmental impacts abroad (the high seas, as necessary with the Council or the Council’s staff con-
the atmosphere, and other areas outside the jurisdiction cerning specific procedures, proposals or programs which
of any national; and other countries). We have noted may be affected.
different interpretations and practices among several
agencies on this issue, and consequently have seen im- Russel W. Peterson
pact statements filed which reflect varying degrees of
consideration of the impacts abroad of U.S. actions Chairman
(whether the actions are taken or the decisions made in
the United States or abroad).
In order to encourage a consistent application of NEPA
to all major federal actions, the Council is issuing the
attached Memorandum on the Application of the EIS
Requirement to Environmental Impacts Abroad. In it,
we advise that NEPA requires analysis and disclosure in
environmental statements of significant impacts of fed-
eral actions on the human environment — in the United
States, in other countries, and in areas outside the juris-
diction of any country.
We believe that by taking account of likely impacts
abroad before deciding on a proposal for action, federal
agencies can obtain the same benefits of NEPA review
that accompany the development of projects or actions
with domestic impacts. Moreover, we believe such analy-
ses can be accomplished without imposing U.S. envi-
ronmental standards on other countries, and without in-
terfering with the execution of foreign policy. To the
contrary, such analysis and disclosure can provide use-
ful information to cooperating governments. Finally, if
agencies undertake these analyses in cooperation with
involved foreign governments, U.S. agencies can pro-
mote international protection as recommended in the
Stockholm Declaration and elsewhere.
133
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
MEMORANDUM ON THE Paper on a national Policy for the Environment”, summa-
APPLICATION OF THE EIS rizing the joint Hoseu-Senate colloquium on national en-
vironmental policy that led to NEPA’s introduction, and
REQUIREMENT TO inserted into the record by Senator Jackson during de-
ENVIRONMENTAL IMPACTS bate, stated, “[a]lthough the influence of the U.S. policy
ABROAD OF MAJOR FEDERAL will be limited outside its own borders, the global charac-
ACTIONS ter of ecological relationships must be the guide for do-
mestic activities”.2 Both the House and the Senate re-
ports on NEPA, reflecting the testimony of numerous wit-
NEPA requires analysis of significant environmental nesses at the hearings, recognized the statue’s global per-
impacts of proposed major federal actions on the quality spective. 3 Statements to the same effect were made dur-
of the human environment. The “human environment” ing the floor debates, including an explanation by Sena-
is not limited to the United States, but includes other tor Jackson of NEPA’s statement of environmental policy:
countries and areas outside the jurisdiction of any coun-
try (e.g., the high seas, the atmosphere). The Act con- “What is involved [in NEPA] is a congressional decla-
tains no express or implied geographic limitation of en- ration that we do not intend, as a government or as a
vironmental impacts to the United States or to any other people, to initiate actions which endanger the contin-
area. Indeed, such a limitation would be inconsistent ued existence or the health of mankind: That we will
not intentionally initiate action which will do irrepa-
with the plain language of NEPA, its legislative purpose,
rable damage to the air, land and water which support
the council’s Guidelines, and judicial precedents. life on earth”. 4
In a statute which in other sections refer specifically to The House Merchant Marine and Fisheries Committee
the national environment, 1 use of the term human envi- during oversight hearings specifically rejected the argu-
ronment in $102(2)(c) reflects an intent to cover envi- ment that NEPA should not be applied to actions occur-
ronmental impacts beyond U.S. borders. This interpre- ring within the jurisdiction of another nation:
tation is consistent with NEPA’s stated purpose, declared
in the preamble to the Act, to “encourage productive and “Stated most charitably, the committee disagrees with
enjoyable harmony between man and his environment; this interpretation of NEPA. The history of the act
to promote efforts which will prevent or eliminate dam- makes it quite clear that the global effects of environ-
age to the environment and biosphere and stimulate the mental decisions are inevitably a part of the decision
making process and must be considered in that con-
health and welfare of man”. It is also consistent with
text”5
Congress’ recognition in Section 101 of “the profound
impact of man’s activity on the inter-relations of all com- The Council has consistently applied NEPA to U.S. in-
ponents of the natural environment ... and ... the critical ternational activities and has urged federal agencies to
importance of restoring and maintaining environmental recognize the Act’s global perspective. In its first An-
quality to the overall welfare and development of man”. nual Report, for example, the Council pointed out that
Applying the EIS requirement to impacts abroad also NEPA “directed all agencies of the Federal Government
implements the mandate in Section 102 to all agencies to recognize the worldwide and long-range character of
to “recognize the worldwide and long range character of environmental problems”. 6 In 1971 the Council’s Legal
environmental problems”. In sum, the broad language Advisory Committee specifically urged federal agencies
of Section 102(2)(c) as well as the explicit congressional to apply NEPA to their actions in foreign countries.7 The
determination that our national environmental policy Council’s 1973 Guidelines require the assessment of
must have a global perspective gives Section 102(2)(c) a “Both the national and international environment”.8 The
wide scope. Fifth Annual Report reviewed agencies’ experience in
applying the EIS process to U.S. actions abroad.9 In 1976
The legislative history of NEPA support the inclusion of the Council reported on one of the benefits of this expe-
impacts globally and in other countries within the scope rience—the growth of environmental impact assessment
of the EIS requirement. A 1968 “Congressional White procedures in other countries.10
2
115 Cong. Rec. 29082 (Oct. 8, 1969).
3
See, e.g., Sen. Rep. No. 91-296, 91st Cong., 1st Sess., at 17, 43-45 91969); H.R. Rep. No. 91-378, 91st Cong., 1st Sess., at 5, 7 91969).
4
115 Cong. Rec. 14347 (May 29, 1969); 115 Cong. Rec. 26575-16476 (Sept. 23, 1969); 115 Cong. Rec. 29056 (Oct. 8, 1969).
5
H.R. Rep. 92-316, 92nd Cong., 1st Sess., at 32-33 (1971).
6
CEQ, Environmental Quality - 1970, at 200 (1970).
7
Legal Advisory Committee Report to the President’s Council on Environmental Quality, at 13-17 (December 1971).
8
40 C.F.R. Section 1500, 8(a) (3)(i) (1975)
9
CEQ, Environmental Quality - 1974, at 399-400 (1974).
10
CEQ, Environmental Quality - 1975, at 653-54 (1976).
134
SIERRA CLUB V COLEMAN
Accordingly, some federal agencies have provided in mental cooperation as directed in §102 (2)(F),15 the Stock-
their NEPA procedures for the preparation of environ- holm Declaration, and other international agreements.16
mental statements when agency actions cause signifi-
cant environmental impacts beyond U.S. borders,11 and To the extent national security or essential foreign policy
impact statements have been prepared on U.S. Actions considerations make controlled circulation of
in foreign countries 12. Moreover,the courts 13 and virtu- environmental statements necessary, NEPA provides
ally every legal commentary addressing the subject 14 sufficient procedural flexibility to accomplish this.
have supported the Council’s belief that an environmen- Section 102(2)(C) provides exceptions to public
tal statement is required whenever U.S. actions would circulation of documents by incorporating the Freedom
have significant environmental impacts on the U.S., on of Information Act and its exemptions by reference.
global resources, or on foreign countries. Environmental statements or portions of them have been
classified, for example, when necessary to protect
The policies underlying NEPA reinforce the interpreta- national security. 17 Presumably, if public examination
tion suggested by its language and legislative history, of a proposed U.S. action in another country would
judicial precedents and administrative practice. Analy- jeopardize U.S. foreign policy in a given instance,
sis and disclosure in an EIS of a significant environmental circulation of the environmental statement could be
effects provide U.S. decisionmakers a fuller picture of restricted in accordance with these statutory procedures.18
the foreseeable environmental consequences of their de- In general, however, Congress has mandated that
cisions. Impact statements do not dictate actions on for- environmental statements are public documents.
eign soil or impose U.S. requirements on foreign coun-
tries; instead, they guide U.S. decisionmakers in deter- In summary, the Council believes that the impact
mining U.S. policies and actions. statement requirement in §102(2)(C) of NEPA applies
to all significant effects of proposed federal actions on
In addition, EIS provide information to cooperating gov- the quality of the human environment — in the United
ernments which they then could use in making decisions States, in other countries. Accordingly, agency officials
bout projects within, or which may affect, their coun- responsible for analyzing the potential environmental
tries. Far from being an imposition, this information effects of proposed actions should fully assess the
can enhance the value of U.S. assistance or participa- potential impacts outside the United States, as well as
tion. This full disclosure by the United States contrib- those within it; if any of these potential impacts are likely
utes to the integrity of cooperating governments’ policy to be significant, an impact statement should be prepared.
making, and thus lends support to international environ-
11
See, e.g,. 38 Fed. Reg. 34135-46 (1973) (Coast) Guard); 37 Fed Reg. 19167-68 (1972) (Dept. of State); 41 Fed Reg. 26913-16919 (1976)
(Agency for International Development).
12
See, e.g., Dept. of Transportation, Draft EIS, Darien Final EIS, Alaska Natural Gas Transportation System (March 1975).
13
In Wilderness Society v. Morton, 463 G. 2d 1261 (D.C. Cir. 1972),the court granted standing to Canadian intervenors concerned with the
trans-Alaska Pipeline,holding that the intervenors; interest in the significant impacts of the pipeline in Canada were within the zone protected by
Section 102(2)(c). In Sierra Club v. Coleman, 405 F. Supp. 53 (D.D.C. 1975), the court held inter alia, that DOT’s impact assessment on portions
of the Pan-American Highway was deficient because it failed to address the environmental impacts of alternative highway corridors through
Panama and Columbia. Since the significant impacts of corridor alternatives lay exclusively in Panama and Colombia, the case necessarily olds
that impacts in foreign national territory are within the scope of Section 102(2)(C).
Of course, significant, indirect as well as direct impacts must be considered. 40 C.F.R. Section 1500.8(a)(3)(ii) (1975); City of Davis v. Coleman,
521 F.2d 661, (9th Cir., 1975); see CEQ, Environmental Quality-1974, at 410-11 (1974).
14
See, e.g., Committee on Environmental Law of the Section on International and Comparative Law of the American Bar Association, Opinion
on the International Scope of NEPA (July 1971); Strausberg, the National Environmental Policy Act and the Agency for International Develop-
ment, 7 Int’l Law. 46 91972); Robinson, Extraterritorial Environmental Protection Obligations of Foreign Affairs Agencies: The Unfulfilled
Mandate of NEPA, 7 Int’l. Law. Pol. 257 (1974) Note, the Extraterritorial Scope of NEPA’s Environmental Impact Statement Requirement, 74
Mich. L. Rev. 349 (1975); Appelbaum, Controlling the Hazards of International Development, 5 Ecol. L.Q. 321 (1976).
15
See H.R. Rep. 92-316, 92nd Cong., 1st Sess., at 33 (1971)
16
See e.g., Convention Concerning the Protection of the World Cultural and Natural Heritage, November 23, 1972; Convention on Nature
Protection and Wildlife Preservation in the Western Hemisphere, October 12, 1940.
17
See e.g., U.S. Navy, Final EIS, Transit Satellite (June 1972).
18
Thus, NEPA incorporates a procedure for ensuring that the execution of U.S. foreign policyand U.S. environmental policy are consistent. Of
course, no agency has the authority to deviate from NEPA’s requirements, on foreign policy or other grounds. Calvert Cliffs’ Coordinating
Comm. v. AEC, 449 F. 2d 2209 (D.C. Circ. 1971).
135
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
354 F.2d 608
SCENIC HUDSON PRESERVATION CONFERENCE, TOWN OF
CORTLANDT, TOWN OF PUTNAM VALLEY AND TOWN OF
YORKTOWN, PETITIONERS, V. FEDERAL POWER COMMIS-
SION, RESPONDENT, AND CONSOLIDATED EDISON COM-
PANY OF NEW YORK, INC., INTERVENER
No. 106, Docket No. 29853
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
354 F.2d 608; 1965 U.S. App. LEXIS 3514; 1 ERC (BNA) 1084; 1 ELR 20292
October 8, 1965, Argued
December 29, 1965, Decided
CORE TERMS: transmission, underground, Federal intervener, the Consolidated Edison Company of
Power Act, license, fish, reservoir, turbines, recreational, New York, Inc., to construct a pumped storage hy-
plant, water, public interest, storage, gas turbine, fish- droelectric project on the west side of the Hudson
ery, installation, kilowatt, overhead, peaking, aggrieved, River at Storm King Mountain in Cornwall, New
licensing, scenic, beauty, route, eggs, river, staff, town, York;
natural resources, striped bass, interconnection
(b) An order of May 6, 1965 denying petitioners’ appli-
JUDGES: Lumbard, Chief Judge and Waterman and cation for a rehearing of the March 9 order, and for
Hays, Circuit Judges. the reopening of the proceeding to permit the intro-
duction of additional evidence;
OPINION: HAYS, Circuit Judge:
(c) An order of May 6, 1965 denying joint motions filed
In this proceeding the petitioners are the Scenic Hudson by the petitioners to expand the scope of supplemen-
Preservation Conference, an unincorporated association tal hearings to include consideration of the practi-
consisting of a number of non-profit, conservationist or- cality and cost of underground transmission lines,
ganizations, and the Towns of Cortlandt, Putnam Valley and of the feasibility [**2] of any type of fish pro-
and Yorktown. Petitioners ask us, pursuant to § 313(b) tection device.
of the Federal Power Act, 16 U.S.C. § 825l(b), to set
aside three orders of the respondent, the Federal Power A pumped storage plant generates electric energy for use
Commission: 1 during peak load periods, 2 using hydroelectric units
driven by water from a headwater pool or reservoir. The
(a) An order of March 9, 1965 granting a license to the contemplated Storm King project would be the largest
1
At oral argument petitioners made a motion to enlarge the record by including in it the supplemental hearings conducted before a Trial
Examiner of the Federal Power Commission in May 1965. These hearings were limited to consideration of the routes of overhead transmission
facilities and the design of fish protection devices. Petitioners allege that the May hearings divulge information which should have been developed
and considered by the Commission at the time the license was granted. We are not being asked to review the October 4, 1965 order, setting forth
the Commission’s determination of the questions presented at the May hearings, but rather to consider evidence compiled at the May hearings as
a convenient source of information from which inferences can be drawn about the completeness of the March 9 record. For this limited purpose
we have granted petitioners’ motion.
2
Capacity for peak load periods is that part of a system’s generating equipment which is operated intermittently for short periods during the
hours of highest daily, weekly, or seasonal kilowatt demand.
136
SCENIC H UDSON P RESERVATION C ONFERENCE V F EDERAL P OWER C OMMISSION
of its kind in the world. Consolidated Edison has esti- Cornwall. See Federal Power Commission, National
mated its cost, including transmission facilities, at Power Survey 120-21 (1964).
$162,000,000. The project would consist of three major
components, a storage reservoir, a powerhouse, and trans- The Storm King project has aroused grave concern among
mission lines. The storage reservoir,3 located over a thou- conservationist groups, adversely affected municipalities
sand feet above the powerhouse, is to be connected to and various state and federal legislative units and ad-
the powerhouse, located on the river front, by a tunnel ministrative agencies. 7
40 feet in diameter. The powerhouse, which is both a
pumping and generating station, would be 800 feet long To be licensed by the Commission a prospective project
and contain eight pump generators.4 must meet the statutory test of being “best adapted to a
comprehensive plan for improving or developing a wa-
Transmission lines would run under the Hudson to the terway,” Federal Power Act § 10(a), 16 U.S.C. § 803(a).
east bank and then underground for 1.6 miles to a switch- In framing the issue before it, the Federal Power Com-
ing station which Consolidated Edison would build at mission properly noted:
Nelsonville in the Town of Philipstown. Thereafter, over-
head transmission lines would be placed on towers 100 “We must compare the Cornwall project with any al-
to 150 feet high and these would require a path up to 125 ternatives that are available. If on this record Con
feet wide5 through Westchester and Putnam Counties for Edison has available an alternative source for meeting
a distance of some 25 miles until they reached Consoli- its power needs which is better adapted to the devel-
opment of the Hudson River for all beneficial uses,
dated Edison’s main connections with New York City.6
including scenic beauty, this application should be
denied.”
During slack periods Consolidated Edison’s conventional
steam plants in New York City would provide electric If the Commission is properly to discharge its duty in
power for the pumps at Storm King to force water up the this regard, the
mountain, through the tunnel, and into the upper reser-
voir. In peak periods water would be released to rush record on which it bases its determination must be com-
down the mountain and power the generators. Three kilo- plete. The petitioners and the public at large have a right
watts of power generated in New York City would be to demand this completeness. It is our view, and we find,
necessary to obtain two kilowatts from the Cornwall in- that the Commission has failed to compile a record which
stallation. When pumping the powerhouse would draw is sufficient to support its decision. The Commission has
approximately 1,080,000 cubic feet of water per minute ignored certain relevant factors and failed to make a thor-
from the Hudson, and when generating would discharge ough study of possible alternatives to the Storm King
up to 1,620,000 cubic feet of water per minute into the project. While the courts have no authority to concern
river. The installation would have a capacity of 2,000,000 themselves with the policies of [**8] the Commission, it
kilowatts, but would be so constructed as to be capable is their duty to see to it that the Commission’s decisions
of enlargement to a total of 3,000,000 kilowatts. The receive that careful consideration which the statute con-
water in the upper reservoir may be regarded as the templates. See Michigan Consolidated Gas [*613] Co.
equivalent of stored electric energy; in effect, Consoli- v. Federal Power Comm., 108 U.S.App.D.C. 409, 283
dated Edison wishes to create a huge storage battery at F.2d 204, 226, cert. denied, Panhandle Eastern Pipe Line
3
The project’s reservoir would contain a surface area of 240 acres and a usable capacity of 25,000 acre-feet. A part of the space which it would
occupy is now occupied by a reservoir providing part of the water supply for the Village of Cornwall. Another area consisting of approximately
70 acres of property within the Black Rock Forest, a private forest reserve of Harvard University, would also be inundated by the proposed
reservoir. Consolidated Edison has offered appropriate compensation for the acreage which would be used.
4
According to plans presented to the Federal Power Commission three pumping generator units would be installed and go into operation in
mid-1967 and the remaining five in 1968.
5
However, the path might be even wider at corners, transportation points, access points, or points of an unusual character.
6
As has already been noted we are not now concerned with the order of October 4, 1965 in which the Commission established the exact route
of the transmission lines and the width of the right-of-way.
7
For bills introduced in Congress for the purpose of preserving the Hudson River and adjacent areas see House Introduction No. H.R. 3012,
3918; Senate Introduction No. S. 1386. Hearings were held on May 10 and 11, 1965 before the House of Representatives Subcommittee on
Fisheries and Wildlife Conservation. House of Representatives, 89th Cong., 1st Sess., on Hudson River Spawning Grounds.
The New York Joint Legislative Committee on Natural Resources held hearings on November 19 and 20, 1964. See Preliminary Report on the
Joint Legislative Committee on Natural Resources, On the Hudson River Valley and the Consolidated Edison Company Storm King Mountain
Project (issued February 16, 1965) (hereinafter cited “Preliminary Report”).
The Fish and Wildlife Service of the Department of the Interior and the New York State Conservation Department have expressed concern about
the effect of the project on the fish life of the Hudson. See Part IV infra.
Numerous conservationist groups have interested themselves in the project, and many of them filed formal petitions to intervene before the
Commission.
137
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Co. v. Michigan Consol. Gas Co., 364 U.S. 913, 81 S. Congress gave the Federal Power Commission sweep-
Ct. 276, 5 L. Ed. 2d 227 (1960). Petitioners’ application, ing authority and a specificplanning responsibility. First
pursuant to § 313 (b), 16 U.S.C. § 825l(b), to adduce Iowa Hydro-Electric Coop. v. Federal [*614] Power
additional evidence is granted.8 We set aside the three Comm., 328 U.S. 152, 180-181, 66 S. Ct. 906, 919, 90
orders of the Commission to which the petition is ad- L. Ed. 1143 (1946) (“instead of the piecemeal, restric-
dressed and remand the case for further proceedings in tive, negative approach of the River and Harbor Acts and
accordance with this opinion. other federal laws previously enacted”); National Hells
Canyon Ass’n v. Federal Power Comm., 99 U.S.App.D.C.
I. The Storm King project is to be located in an area of 149, 237 F.2d 777 (1956), cert. denied, 353 U.S. 924, 77
unique beauty and major historical significance. The S. Ct. 681, 1 L. Ed. 2d 720, rehearing denied, 353 U.S.
highlands and gorge of the Hudson offer one of the fin- 978, 77 S. Ct. 1054, 1 L. Ed. 2d 1139 (1957).
est pieces of river scenery in [**9] the world. The great
German traveler Baedeker called it “finer than the Rhine.” Section 10(a) of the Federal Power Act, 16 U.S.C. §
Petitioners’ contention that the Commission must take 803(a), reads:
these factors into consideration in evaluating the Storm
King project is justified by the history of the Federal § 803. Conditions of license generally.
Power Act.
All licenses issued under sections 792, 793, 795-818,
The Federal Water Power Act of 1920, 41 Stat. 1063 and 820-823 of this title shall be on the following condi-
(1920) (now Federal Power Act, 16 U.S.C. § 791a et seq.), tions:
was the outgrowth of a widely supported effort on the
part of conservationists to secure the enactment of a com- (a) That the project adopted, * * * shall be such as in the
plete scheme of national regulation which would pro- judgment of the Commission will be best adapted to a
mote the comprehensive development of the nation’s comprehensive plan for improving or developing a wa-
water resources. See Federal Power Comm. v. Union terway or waterways for the use or benefit of interstate
Electric Co., 381 U.S. 90, 98-99, 85 S. Ct. 1253, 14 L. or foreign commerce, for the improvement and utiliza-
Ed. 2d 239 (1965); First Iowa Hydro-Electric Coop. v. tion of water-power development, and for other benefi-
Federal Power Comm., 328 U.S. 152, 180, 66 S. Ct. 906, cial public uses, including [**12] recreational purposes;
90 L. Ed. 1143 (1946). See generally Cushman, The In- and if necessary in order to secure such plan the Com-
dependent Regulatory Commission 275-283 (1941); mission shall have authority to require the modification
Pinchot, The Long Struggle for Effective Federal Water of any project and of the plans and specifications of the
Power Legislation, 14 Geo.Wash.L.Rev. 9 (1945). 9 It project works before approval.” (Emphasis added.)
“was passed for the purpose of developing and preserv-
ing to the people the water power resources of the coun- “Recreational purposes” are expressly included among
try.” United States ex rel. Chapman v. Federal Power the beneficial public uses to which the statute refers. The
Comm., 191 F.2d 796, 800 (4th Cir. [**10] 1951), aff’d, phrase undoubtedly encompasses the conservation of
345 U.S. 153, 73 S. Ct. 609, 97 L. Ed. 918 (1953). natural resources, the maintenance of natural beauty, and
8
The hearings to which the third order refers have already been held; however, the relief petitioners seek is provided by our determination as
to the second order.
9
The Supreme Court has noted that:
“The movement toward the enactment of the Act in 1920 may be said to have taken its keynote from President Roosevelt’s veto of a bill which
would have turned over to private interests important power sites on the Rainy River.” Federal Power Comm. v. Union Electric Co., 381 U.S. 90,
98-99 n. 11, 85 S. Ct. 1253, 1258, 14 L. Ed. 2d 239 (1965).
President Roosevelt’s veto message read:
“We are now at the beginning of great development in water power. Its use through electrical transmission is entering more and more largely into
every element of the daily life of the people. Already the evils of monopoly are becoming manifest; already the experience of the past shows the
necessity of caution in making unrestricted grants of this great power.” 42 Cong.Rec. 4698 (1908).
See also President Roosevelt’s veto of the James River bill, H.R. 17767, 60th Cong., 2d Sess. (1909), veto message, 43 Cong.Rec. 978 (1909);
President Roosevelt’s letter appointing the Inland Waterways Commission, 42 Cong.Rec. 6968 (1908), which read in part:
“Works designed to control our water-ways have thus far usually been undertaken for a single purpose, such as the improvement of navigation,
the development of power, the irrigation of arid lands, the protection of lowlands from floods, or to supply water for domestic and manufacturing
purposes. While the rights of the people to these and similar uses of water must be respected, the time has come for merging local projects and
uses of the inland waters in a comprehensive plan designed for the benefit of the entire country. Such a plan should consider and include all the
uses to which streams may be put, and should bring together and coordinate the points of view of all users of waters.
“[The plans of the Commission should be formulated] in the light of the widest knowledge of the country and the people, and from the most
diverse points of view.”
138
SCENIC H UDSON P RESERVATION C ONFERENCE V F EDERAL P OWER C OMMISSION
the preservation of historic sites.10 See Namekagon Hy- “(b)Any party to a proceeding under this chapter ag-
dro Co. v. Federal Power Comm., 216 F.2d 509, 511- grieved by an order issued by the Commission in
512 (7th Cir. 1954). All of these “beneficial uses,” the such proceeding may obtain a review of such order
Supreme Court has observed, “while unregulated, might in the United States Court of Appeals for any circuit
well be contradictory rather than harmonious.” Federal wherein the licensee or public utility to which the
Power Comm. v. Union Electric Co., 381 U.S. 90, 98, 85 order relates is located * * *.”
S. Ct. 1253, 1258, 14 L. Ed. 2d 239 (1965). In licensing
a project, it is the duty of the Federal Power Commis- The Commission takes a narrow view of the meaning of
sion properly to weigh each factor. “aggrieved party” under the Act. The Supreme Court has
observed that the law of standing is a “complicated
[**13] specialty of federal jurisdiction, the solution of whose
problems is in any event more or less determined by the
In recent years the Commission has placed increasing specific circumstances of individual situations * * *.”
emphasis on the right of the public to “out-door recrea- United States ex rel. [**15] Chapman v. Federal Power
tional resources.” 1964 F.P.C. Report 69.Regulations is- Comm., 345 U.S. 153, 156, 73 S. Ct. 609, 612, 97 L. Ed.
sued in 1963, for the first time, required the inclusion of 918 (1953). Although a “case” or “controversy” which
a recreation plan as part of a license application. F.P.C. is otherwise lacking cannot be created by statute, a stat-
Order No. 260-A, amending § 4.41 of Regulations un- ute may create new interests or rights and thus give stand-
der Federal Power Act, issued April 18, 1963, 29 F.P.C. ing to one who would otherwise be barred by the lack of
777, 28 Fed.Reg. 4092. The Commission has recognized a “case” or “controversy.” The “case” or “controversy”
generally that members of the public have rights in our requirement of Article III, § 2 of the Constitution does
recreational, historic and scenic resources under the Fed- not require that an “aggrieved” or “adversely affected”
eral Power Act. Namekagon Hydro Co., 12 F.P.C. 203, party have a personal economic interest. See State of
206 (1954) (“the Commission realizes that in many cases Washington Dept. of Game v. Federal Power Comm.,
where unique and most special types of recreation are 207 F.2d 391 (9th Cir. 1953), cert. denied, 347 U.S. 936,
encountered a dollar evaluation is inadequate as the public 74 S. Ct. 626, 98 L. Ed. 1087 (1954); Reade v. Ewing,
interest must be considered and it cannot be evaluated 205 F.2d 630 (2d Cir. 1953); cf. Scripps-Howard Radio,
adequately only in dollars and cents”). In affirming Inc. v. Federal Communications Comm., 316 U.S. 4, 62
Namekagon the Seventh Circuit upheld the Commis- S. Ct. 875, 86 L. Ed. 1229 (1942); Federal Communica-
sion’s denial of a license, to an otherwise economically tions Comm. v. Sanders Bros. Radio Station, 309 U.S.
feasible project, because fishing, canoeing and the sce- 470, 642, 60 S. Ct. 693, 84 L. Ed. 869 (1940); Interna-
nic attraction of a “beautiful stretch of water” were threat- tional Union of Electrical, Radio and Machine Workers
ened. Namekagon Hydro Co. v. Federal Power Comm., v. Underwood Corp., 219 F.2d 100, 103 (2d Cir. 1955);
216 F.2d 509, 511-512 (7th Cir. 1954). Associated Industries, Inc. v. Ickes, 134 F.2d 694 (2d
Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct. 74, 88 L.
Commissioner [**14] Ross said in his dissent in the Ed. 414 (1943); Jaffe, [**16] Standing to Secure Judi-
present case: “Itappears obvious that had this area of the cial Review: Private Actions, 75 Harv.L.Rev. 255 (1961).
‘Hudson [*615] Highlands’ been declared a State or Even in cases involving original standing to sue, the Su-
National park, that is, had the people in the area already preme Court has not made economic injury a prerequi-
spoken, we probably would have listened and might well site where the plaintiffs have shown a direct personal
have refused to license it.” interest. See, e.g., School District of Abington Township
v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d
II. 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261,
8 L. Ed. 2d 601 (1962); Zorach v. Clauson, 343 U.S.
Respondent argues that “petitioners do not have stand- 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952).
ing to obtain review” because they “make no claim of
any personal economic injury resulting from the Com- In State of Washington Dept. of Game v. Federal Power
mission’s action.” Comm., 207 F.2d 391, 395 n. 11 (9th Cir. 1953), cert.
denied, 347 U.S. 936, 74 S. Ct. 626, 98 L. Ed. 1087
Section 313(b) of the Federal Power Act, 16 U.S.C. § (1954), the Washington State Sportsmen’s Council, Inc.,
825l(b), reads: a non-profit organization of residents, the State of Wash-
10
The clear intention of Congress to emphasize “recreational purposes” is indicated by the fact that subsection (a) was amended in 1935 by
substituting the present language “plan for improving or developing * * * including recreational purposes” for “scheme of improvement and
utilization for the purposes of navigation, of water-power development, and of other beneficial public uses.” Senate Rep.No.621, 74th Cong., 1st
Sess., page 45 stated that the amendment was intended to add “an express provision that the Commission may include consideration of recrea-
tional purposes.”
139
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
ington, Department of Game, and the State of Washing- Commission did not deny their right to file an applica-
ton, Department of Fisheries, opposed the construction tion for a rehearing under § 313(a) of the Act which also
of a dam because it threatened to destroy fish. The Fed- speaks in terms of “aggrieved parties.” 12
eral Power Commission granted the license; the
interveners applied for a rehearing which the Commis- Moreover, petitioners have sufficient economic [**19]
sion denied. Petitioners asked for review under § 313(b) interest to establish their standing. The New York-New
and the court upheld their standing, noting: Jersey Trail Conference, one of the two conservation
groups that organized Scenic Hudson, has some seven-
“All are ‘parties aggrieved’ since they claim [**17] that teen miles of trailways in the area of Storm King Moun-
the Cowlitz Project will destroy fish in [sic] which they, tain. Portions of these trails would be inundated by the
among others, are interested in protecting.” construction of the project’s reservoir.
The Federal Power Act seeks to protect non-economic The primary transmission lines are an integral part of
as well as economic interests.11 Indeed, the Commission the Storm King project. See Federal Power Act § 3(11),
recognized this in framing the issue in this very case: 16 U.S.C. § 796(11). 13 The towns that are co-petitioners
with Scenic Hudson have standing because the transmis-
“The project is to be physically located in a general area sion lines would cause a decrease in the proprietary value
of our nation [*616] steeped in the history of the Ameri- of publicly held land, reduce tax revenues collected from
can Revolution and of the colonial period. It is also a privately held land, and significantly interfere with long-
general area of great scenic beauty. The principal issue range community planning. See City of Pittsburgh v.
which must be decided is whether the project’s effect on Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d
the scenic, historical and recreational values of the area 741, 748 (1956). Yorktown, for example, fears that the
are such that we should deny the application.” transmission lines would run over municipal land selected
for a school site, greatly decreasing its value and inter-
In order to insure that the Federal Power Commission fering with school construction. Putnam Valley faces
will adequately protect the public interest in the aesthetic, similar interference with local planning and a substan-
conservational, and recreational aspects of power devel- tial decrease in land tax revenues.14
opment, those who by their activities and conduct have
exhibited a special interest in such areas, must be held to [*617] We see no justification for the Commission’s fear
be [**18] included in the class of “aggrieved” parties that our determination will encourage “literally thou-
under § 313(b). We hold that the Federal Power Act gives sands” to intervene and seek review in future proceed-
petitioners a legal right to protect their special interests. ings. We rejected a similar contention in Associated In-
See State of Washington Dept. of Game v. Federal Power dustries, Inc. v. Ickes, 134 F.2d 694, 707 (2d Cir.), va-
Comm., supra. cated as moot, 320 U.S. 707, 64 S. Ct. 74, 88 L. Ed. 414
(1943), noting that “no such horrendous possibilities”
At an earlier point in these proceedings the Commission exist. Our experience [**21] with public actions con-
apparently accepted this view. Consolidated Edison firms the view that the expense and vexation of legal
strongly objected to the petitioners’ standing, but the proceedings is not lightly undertaken.
11
See discussion in Part I, supra.
12
Federal Power Act § 313(a), 16 U.S.C. § 825l(a), reads:
Ҥ 825 l. Rehearings; court review of orders
(a) Any person, State, municipality, or State commission aggrieved by an order issued by the Commission in a proceeding under this chapter to
which such person, State, municipality, or State commission is a party may apply for a rehearing within thirty days after the issuance of such
order.”
13
Federal Power Act § 3(11), 16 U.S.C. § 796(11) reads:
“‘Project’ means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works
and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected
therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected
primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights,
rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the mainte-
nance and operation of such unit.” (Emphasis added.)
[**20]
14
Permitting the Commission, for reasons of convenience and practicality, to limit the licensing proceeding and to hold for later determination
the route of transmission lines, does not divest the petitioning towns of their standing. If we accepted the Commission’s contrary argument we
would be required to withdraw from the towns their right to challenge the entire integrated project.
Although the order of October 4, 1965 is not before us for review, we note that the Commission has conceded in its Supplemental Brief that
Putnam Valley is in the same position as before the order and that the transmission route chosen “might be sufficient to cause aggrievement” to
petitioner, Yorktown.
140
SCENIC H UDSON P RESERVATION C ONFERENCE V F EDERAL P OWER C OMMISSION
In any case, the Federal Power Act creates no absolute to the Commission memoranda supporting an alterna-
right of intervention; § 308(a), 16 U.S.C. § 825g(a), reads: tive suggestion. The District of Columbia Circuit set aside
the Commission’s order and remanded the case with di-
“In any proceeding before it, the Commission, in accord- rections to reopen the record. It found that the Commis-
ance with such rules and regulations as it may prescribe, sion had improperly rejected as “untimely” evidence
may admit as a party any interested State, State commis- concerning the proposed alternative. The court stated that:
sion, municipality, or any representative of interested
consumers or security holders, or any competitor of a “The existence of a more desirable alternative is one of
party to such proceeding, or any other person whose par- the factors which enters into a determination of whether
ticipation in the proceeding may be in the public inter- a particular proposal would serve the public convenience
est.” and necessity. That the Commission has no authority to
command the alternative does not mean that it cannot
Since the right to seek review under § 313(a) and (b) is reject the [original] proposal.” City of Pittsburgh v. Fed-
limited to a “party” to the Commission proceeding, the eral Power [*618] Comm., 99 U.S.App.D.C. 113, 237
Commission has ample authority reasonably to limit F.2d 741, 751 n. 28 (1956).
those eligible to intervene or to seek review. See Alston
Coal Co. v. Federal Power Comm., 137 F.2d 740, 742 In the present case, the Commission heard oral argument
(10th Cir. 1943). Representation of common interests by on November 17, 1964, on the various exceptions to the
an organization such as Scenic Hudson serves to limit Examiner’s report. On January 7, 1965 the testimony of
the number of those who might otherwise apply for Mr. Alexander Lurkis, as to the feasibility of an alternative
intervention and serves to expedite the administrative to the project, the use of gas turbines, was offered to the
process. Commission by Hilltop Cooperative of Queens, a
taxpayer and consumer group. The petition to [**24]
III intervene and present this new evidence was rejected on
January 13, 1965 as not “timely.” It was more than two
The Federal Power Act § 313(b), 16 U.S.C. [**22] § months after the offer of this testimony, on March 9, 1965,
825l(b), reads in part: that the Commission issued a license to Consolidated
Edison. When Mr. Lurkis’s testimony was subsequently
“(b) If any party shall apply to the court for leave to ad- reoffered by the petitioners on April 8, 1965, it was
duce additional evidence, and shall show to the satisfac- rejected because it represented “at best” a “disagreement
tion of the court that such additional evidence is mate- between experts.” On the other hand, we have found in
rial and that there were reasonable grounds for failure to the record no meaningful evidence which contradicts the
adduce such evidence in the proceedings before the Com- proffered testimony supporting the gas turbine alternative.
mission, the court may order such additional evidence to
be taken before the Commission and to be adduced upon Mr. Lurkis is a consulting engineer of thirty-nine years
the hearing in such manner and upon such terms and experience. He has served as Chief Engineer of the New
conditions as to the court may seem proper.” York City Bureau of Gas and Electric, in charge of a
staff of 400, and as Senior Engineer of the New York
The Commission in its opinion recognized that in con- City Transit Authority, where he supervised the design
nection with granting a license to Consolidated Edison and construction of power plants.15 The New York Joint
it “must compare the Cornwall project with any alterna- Legislative Committee on Natural Resources, 16 after
tives that are available.” There is no doubt that the Com- holding hearings on the Storm King project on Novem-
mission is under a statutory duty to give full considera- ber 19 and 20, 1964, summarized Mr. Lurkis’s testimony
tion to alternative plans. See Michigan Consolidated Gas as follows:
Co. v. Federal Power Comm., 108 U.S.App.D.C. 409,
283 F.2d 204, 224-226, cert. denied, Eastern Pipe Line “Mr. Alexander Lurkis * * * presented a detailed pro-
Co. v. Michigan Consol. Gas Co., 364 U.S. 913, 81 S. posal for using gas turbines. This, he claimed, would meet
Ct. 276, 5 L. Ed. 2d 227 (1960); City of Pittsburgh v. the alleged peaking [**25] need of Con Ed and result in
Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d a saving for its customers of $132,000,000. The Com-
741 (1956). mittee has learned that similar gas turbine installations
are now in use or proposed for use by a number of pro-
In City of Pittsburgh, three months after the hearings gressive electric utilities throughout the nation. In addi-
[**23] were closed, the petitioners attempted to present tion to meeting the alleged peak power needs and saving
15
Mr. Lurkis has made numerous studies of utility adequacy including a survey of “blackouts” in New York during 1959 and 1961, which
resulted in revisions of the Consolidated Edison system. He is a member of manyprofessional associations and has published numerous articles
and presented many papers on electrical engineering subjects.
16
A total of 107 witnesses were heard; the large majority objected to the project.
141
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
money for the ratepayer, the gas turbines proposed by (1) that gas turbines could meet Consolidated Edison’s
Mr. Lurkis would have the following advantages: reserve needs;
1) Permit the company greater flexibility in meeting (2) that the blackouts of 1959 and 1961 were caused by
the power needs of its service area. Admittedly, breakdowns in distribution, not by a lack of power;
technological developments in power production are
changing and improving this field at such a rapid (3) that gas turbines would avoid the hazards of weather
rate that it may well be entirely revolutionized in 10 damage to high transmission lines involved in the
to 15 years. There are obvious advantages in the gas Storm King project;
turbine installations. Small installations can be added
as needed to meet demand. This, in contrast to a sin- (4) that since 3 kilowatts of power must be generated by
gle, giant, permanent installation such as Con Ed steam plants in New York City in order to get 2 kilo-
proposes at Storm King Mountain, which would tie watts of power from the Storm King project, gas tur-
the technology and investment of one company to a bines would be even more useful than the project in
method of power production that might be obsolete reducing air pollution;
in a few years.
(5) that noise from the turbines would be at acceptable
2) Keep the power production facilities within New York industrial levels.
City. This would not only avoid the desecration of the
Hudson Gorge and Highlands, but, also would [**26] Other benefits envisioned from gas turbines were higher
eliminate the great swathe of destruction down through [**28] reliability, increased system flexibility, and pos-
Putnam and Westchester Counties and their beautiful sible savings in transmission line investment.17
suburban communities.” Preliminary Report at 6.
Aside from self-serving general statements by officials
The Committee report, issued on February 16, 1965, three of Consolidated Edison, the only testimony in the record
weeks before the license to Consolidated Edison was bearing on the gas turbine alternative was offered by
granted, concluded: Ellery R. Fosdick. Fosdick’s hastily prepared presenta-
tion considered turbines driven by steam and liquid fuel
“The whole situation involved in the Consolidated Edison as well as gas; his direct [**29] testimony occupied less
Storm King [*619] Mountain project, and the protection than ten pages of the record.18 Fosdick’s testimony was
of the Hudson River and its shores, requires further and too scanty to meet the requirement of a full considera-
extensive study and investigation. tion of alternatives. Indeed, under the circumstances, we
must conclude that there was no significant attempt to
*** develop evidence as to the gas turbine alternative; at least,
there is no such evidence in the record.
This Committee goes on record as opposing Con Ed’s
application until there [**27] has been adequate study The Commission argues that petitioners made “no at-
of the points indicated in this report.” Preliminary Re- tempt to secure additional testimony.” Yet the record in-
port at 8. dicates that more than two months before the license was
granted the Commission summarily rejected the offer of
Mr. Lurkis’s analysis was based on an intensive study of Mr. [**30] Lurkis’s testimony. It is not our present func-
the Consolidated Edison system, and of its peaking needs tion to evaluate this evidence. Our focus is upon the ac-
projected year by year over a fifteen year period. He was tion of the Commission. The fact that Lurkis’s testimony
prepared to make an economic comparison of a gas tur- was originally offered by a non-petitioner, Hilltop Co-
bine system (including capital and fuel operating costs) operative, is irrelevant. A party acting as a “private attor-
and the Storm King pumped storage plant. Moreover, he ney general” can raise issues that are not personal to it.
was prepared to answer Consolidated Edison’s objections See Associated Industries, Inc. v. Ickes, 134 F.2d 694,
to gas turbines by indicating: 705 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S. Ct.
17
Citing Federal Power Comm. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S. Ct. 435, 5 L. Ed. 2d 377 (1961) the Commission
asserts that “serious policy questions” would be raised by the use of gas, for the generation of electrical energy. But the serious questions alluded
to do not excuse the Commission’s failure to develop and hear pertinent evidence on the alternative. As to the use of gas, the Supreme Court held
in Transcontinental that “a flexible balancing process, in the course of which all factors are weighed prior to final determination,” is needed in
each case. Id. at 23, 81 S. Ct. at 447.
18
Fosdick conceded that he had no firsthand knowledge of the Consolidated Edison system or its requirements. He had been unable to make a
study of the economics of alternative methods of generating peaking power, nor had he made an examination of New York City power needs. His
testimony on air pollution, which was favorable to Consolidated Edison, was addressed to a question on the “burning of kerosene” and not of
natural gas, a non-pollutant.
142
SCENIC H UDSON P RESERVATION C ONFERENCE V F EDERAL P OWER C OMMISSION
74, 88 [*620] L. Ed. 414 (1943); Jaffe, Standing to Se- it; the right of the public must receive active and affirma-
cure Judicial Review: Private Actions, 75 Harv.L.Rev. tive protection at the hands of the Commission.
255, 283 (1961) (“the right to attack an order resting on
a record made by others, or no record at all, could be This court cannot and should not attempt to substitute
valuable”). its judgment for that of the Commission. But we must
decide whether the Commission has correctly discharged
Especially in a case of this type, where public interest its duties, including the proper fulfillment of its plan-
and concern is so great, the Commission’s refusal to re- ning function in deciding that the “licensing of the project
ceive the Lurkis testimony, as well as proffered informa- would [**33] be in the overall public interest.” The Com-
tion on fish protection devices and underground trans- mission must see to it that the record is complete. The
mission facilities,19 exhibits a disregard of the statute and Commission has an affirmative duty to inquire into and
of judicial mandates instructing the Commission to probe consider all relevant facts. See Michigan Consolidated
all feasible alternatives. Michigan Consolidated Gas Co. Gas Co. v. Federal Power Comm., 108 U.S.App.D.C.
v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 409, 283 F.2d 204, 224, 226, cert. denied, 364 U.S. 913,
F.2d 204, 224, 226, cert. denied, 364 U.S. 913, 81 S. Ct. 81 S. Ct. 276, 5 L. Ed. 2d 227 (1960); Isbrandtsen Co. v.
276, 5 [**31] L. Ed. 2d 227 (1960); City of Pittsburgh v. United States, 96 F. Supp. 883, 892 (S.D.N.Y.1951), aff’d
Federal Power Comm., 99 U.S.App.D.C. 113, 237 F.2d by an equally divided court, A/S J. Ludwig Mowinckels
741 (1956). Rederi v. Isbrandtsen Co., 342 U.S. 950, 72 S. Ct. 623,
96 L. Ed. 706 (1952); Friendly, The Federal Administra-
IV tive Agencies 144 (1962); Landis, The Administrative
Process 36-46 (1938); cf. City of Pittsburgh v. Federal
The Federal Power Commission argues that having in- Power Comm., 99 U.S.App.D.C. 113, 237 F.2d 741
tervened “petitioners cannot impose an affirmative bur- (1956).
den on the Commission.” But, as we have pointed out,
Congress gave the Federal Power Commission a specific [*621] In Michigan Consolidated Gas Co. v. Federal
planning responsibility. See Federal Power Act § 10(a), Power Comm., supra, 283 F.2d at 224, the Court of Ap-
16 U.S.C. § 803(a). The totality of a project’s immediate peals of the District of Columbia, in criticizing the Fed-
and long-range effects, and not merely the engineering eral Power Commission for refusing to consider an al-
and navigation aspects, are to be considered in a licens- ternative and for failing to take the initiative in seeking
ing proceeding. As Commissioner Ross said in his dis- information, observed:
sent:
“Even assuming that under the Commission’s rules Pan-
“I do feel the public is entitled to know on the record handle’s rejection of the settlement rendered the proposal
that no stone has been left unturned. How much better it ineffective as a settlement [**34], it could not, and we
would be if the public is clearly advised under oath and believe should not, have precluded the Commission from
cross examination that there truly is no alternative? The considering the proposal on its merits. Indeed, the pro-
threadrunning through this case has been that the appli- posal appears prima facie to have merit enough to have
cant is entitled to a license upon making a prima facie required the Commission at some stage of the proceed-
case. My own personal regulatory philosophy [**32] ing to consider it on its own initiative as an alternative to
compels me to reject this approach. This Commission of total abandonment.” (Emphasis added.)
its own motion, should always seek to insure that a full
and adequate record is presented to it. A regulatory com- On rehearing the court added:
mission can insure continuing confidence in its decisions
only when it has used its staff and its own expertise in “In viewing the public interest, the Commission’s vision
manner not possible for the uninformed and poorly fi- is not to be limited to the horizons of the private parties
nanced public. With our intimate knowledge of other sys- to the proceeding.
tems and to a lesser extent of their plans, it should be
possible to resolve all doubts as to alternative sources. Where, as here, a regulatory agency has ignored factors
This may have been done but the record doesn’t speak. which are relevant to the public interest, the scope of
Let it do so.” judicial review is sufficiently broad to order their con-
sideration. These limits are not to be confused with the
In this case, as in many others, the Commission has narrower ones governing review of an agency’s conclu-
claimed to be the representative of the public interest. sions reached upon proper consideration of the relevant
This role does not permit it to act as an umpire blandly factors.” Id. at 226.
calling balls and strikes for adversaries appearing before
19
See Part IV infra.
143
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Judge Frank, in response to a submission similar to the “Of significant importance, in our opinion, is the absence
one made here, said: in the record, or the inadequacy, of information in re-
gard to Con Edison’s future interconnection plans; its
“This is a somewhat surprising contention, to be con- plans, if any, for upgrading existing transmission lines
trasted with the following views of Commissioner to higher [**37] voltages; and of its existing transmis-
Aitchison of the Interstate Commerce Commission con- sion line grid in this general area and its future plans.”
cerning the obligations of administrative agencies: ‘* *
* The [**35] agency does not do its duty when it merely Moreover, in its October 4, 1965 order, the Commission
decides upon a poor or non representative record. As the in explaining how Consolidated Edison would be able to
sole representative of the public, which is a third party send “substantial amounts” of Storm King power to
in these proceedings, the agency owes the duty to inves- upstate New York and New England power companies,
tigate all the pertinent facts, and to see that they are ad- each December, said:
duced when the parties have not put them in * * *. The
agency must always act upon the record made, and if “ample spinning reserve would be available during the
that is not sufficient, it should see the record is supple- winter from the interconnected companies in New Jer-
mented before it acts. It must always preserve the ele- sey and Pennsylvania, including the ‘mine-mouth’ plants.
ments of fair play, but it is not fair play for it to create an Thus, even at times of the greatest diversion of Cornwall
injustice, instead of remedying one, by omitting to in- power, Con Edison would have other power sources im-
form itself and by acting ignorantly when intelligent ac- mediately available to it for its peak requirements.”
tion is possible * * *.’” Isbrandtsen Co. v. United States,
96 F. Supp. 883, 892 (S.D.N.Y.1951), affirmed by an If interconnecting power can replace the Storm King
equally divided court, A/S J. Ludwig Mowinckels Rederi project in December, why was it not considered as a per-
v. Isbrandtsen Co., 342 U.S. 950, 72 S. Ct. 623, 96 L. manent alternative?
Ed. 706 (1952). And Dean Landis said:
Commissioner Ross in his dissent said: “In my opinion,
“For [the administrative] process to be successful in a the only true alternative that would likely be as economic
particular field, it is imperative that controversies be de- as the proposed project would be purchased peaking
cided as ‘rightly’ as possible, independently of the for- power. There are two possibly differing sources; one
mal record the parties themselves produce. The ultimate would be purchasing pumped storage or normal hydro
test of the administrative [**36] is the policy that it for- peaking which may be in the process of development in
mulates; not the fairness as between the parties of the New England; or secondly, purchasing steam peaking
disposition of a controversy on a record of their own mak- power [**38] from new large scale thermal stations in
ing.” Landis, The Administrative Process 39 (1938). Pennsylvania or in Appalachia.”
In addition to the Commission’s failure to receive or de- There is no evidence in the record to indicate that either
velop evidence concerning the gas turbine alternative, the Commission or Consolidated Edison ever seriously
there are other instances where the Commission should considered this alternative.20 Nor is there any evidence
have acted affirmatively in order to make a complete that a combination of devices, for example, gas turbine
record. and interconnections, were considered. Indeed, the Com-
mission stated in its brief that it is “of doubtful relevance
The Commission neither investigated the use of inter- to the present case whether there are practical alterna-
connected power as a possible alternative to the Storm tives to an appropriate use of water power by which Con
King project, nor required Consolidated Edison to sup- Ed could meet its anticipated needs for peaking power
ply such information. The record sets forth Consolidated with generally comparable economy.” The failure of the
Edison’s interconnection with a vast network of other Commission to inform itself of these alternatives cannot
utilities, but the Commission dismissed this alternative be reconciled with its planning responsibility under the
by noting that “Con Edison is relying fully upon such Federal Power Act.
interconnections in estimating its future available capac-
ity.” However, only ten [*622] pages later in its opinion [**39]
the Commission conceded:
20
At page 39 of the record Mr. M. L. Waring, senior vice-president of Consolidated Edison, described the interconnection system but failed to
answer the question: “Would this not be an economical substitute for the pumped storage project?” In later testimony to a similar question he
responded: “Yes, [other sources of power] are available, but not in sufficient quantity.”
But there was no evidence introduced as to the amount of power available.
144
SCENIC H UDSON P RESERVATION C ONFERENCE V F EDERAL P OWER C OMMISSION
In its March 9 opinion the Commission postponed a de- Commission seriously weighed the aesthetic advantages
cision on the transmission route to be chosen until the of underground transmission lines against the economic
May 1965 hearings were completed. Inquiry into the cost disadvantages. 11
of putting lines underground was precluded because the
May hearings were limited to the question of overhead [**42]
transmission routes. The petitioners’ April 26, 1965 mo-
tion to enlarge the scope of the May hearing was denied. At the time of its original hearings, there was sufficient
The Commission insisted that the question of under- evidence before the Commission concerning the danger
ground costs had been “extensively considered.” We find to fish to warrant further inquiry. The evidence included
almost nothing in the record to support this statement.21 a letter from Kenneth Holum, Assistant Secretary of the
Department of the Interior, and a statement made for the
[**40] record by Robert A. Cook, on behalf of the New York
State Water Resources Commission in which Mr. Cook
[*623] Consolidated Edison estimated the cost of under- said: “The possibility still exists that extensive losses of
ground transmission at seven to twelve times that of over- eggs and/or young of valuable species might occur after
head lines. These estimates were questioned by the Com- installation of the proposed screening devices.”
mission’s own staff, which pointed out that Consolidated
Edison’s estimates incorrectly assumed that the under- Just after the Commission closed its proceedings in No-
ground route would be the same as the overhead; in fact, vember the hearings held by the New York State Legis-
an underground route along the New York Central right- lative Committee on Natural Resources alerted many fish-
of-way would be clearly less costly than the estimate, erman groups to the threat posed by the Storm King
since there are no large differences of elevation requir- project. On December 24 and 30, January 8, and Febru-
ing special pumping facilities and no new cross-country ary 3 each of four groups, concerned with fishing, peti-
right-of-way would be necessary. Moreover, the staff tioned for the right to intervene and present evidence.
noted that the estimates were based on Consolidated They wished to show that the major spawning grounds
Edison’s experience in New York, where excavation and for the distinct race of Hudson River striped bass was in
other costs are higher. The Examiner noted the staff’s the immediate vicinity of the Storm King project and
reservations in his opinion, but since no alternative fig- not “much farther upstream” as inferred by Dr.
ures had been presented, he accepted those submitted by Perlmutter, the one expert witness called by Consolidated
Consolidated Edison, as did the Commission.10 Edison; [**43] to attempt to prove that, contrary to the
impression given by Dr. Perlmutter, bass eggs and lar-
Consolidated Edison witnesses testified that the Storm vae float in the water, at the [*624] mercy of currents;
King project would result in annual savings of that due to the location of the spawning ground and the
$12,000,000 over a steam plant of equivalent capacity. Hudson’s tidal flow, the eggs and larvae would be di-
Given these savings, the Commission should at least have rectly subject to the influence of the plant and would be
inquired into the capital and annual cost of running seg- threatened with destruction; that “no screening device
ments of the transmission line underground in those ar- presently feasible would adequately protect these early
eas where the overhead structures would cause the most stages of fish life” and that their loss would ultimately
serious scenic damage. We find no indication that the destroy the economically valuable fisheries. Their evi-
21
The Commission contends that petitioners failed to raise the issue of underground transmission line costs, and the bearing of these costs on
the licensing of the project, in their Application for Rehearing. But in listing Commission errors, petitioners said:
“finally it excluded from the consideration of * * * where to put the transmission lines the deeper questions of * * * what the cost would be of
putting additional portions of the transmission lines underground.”
The Philipstown Citizens Association, in its Application for Rehearing, specifically urged that the “Commission committed error in excluding
further consideration of underground transmission at the remand hearings which started on May 4, 1965.”
As we said earlier, the petitioners may raise issues which are not personal to them.
22
Compare Federal Power Commission, National Power Survey 156 (1964). (“Efforts are frequently made to require utilities to place transmis-
sion circuits underground. In some circumstances buried cables are advantageous, but the usual cost is 5 to 10 times that of overhead circuits.”)
[**41]
23
The Commission did state the underground costs would be prohibitive “except for short distances,” but no substantiation of this position was
offered nor was a definition of short distance given.
24
Commissioner Ross remarked that “the tactics of [Consolidated Edison] were obviously dictated by the precedential effect of underground
transmission.” See testimony of senior vice-president Waring. “There are thousands of miles of transmission and distribution lines elsewhere in
our territory and in the State of New York, where there is just as much or more reason to put the transmission lines underground as there is here.”
This approach is unacceptable. Each case must be judged on its own merits. The area involved here is an area of “unique beauty,” as Commis-
sioner Ross noted in his dissenting opinion.
145
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
dence also indicated that in the case of shad, the young around [**45] Long Island and offshore.”
migrate from their spawning grounds, down past Corn-
wall, and being smaller than the meshes of the contem- Mr. E. L. Cheatum, representing the New York State
plated fish screens, would be subject to the hazards al- Conservation Department, gave similar testimony. At the
ready described.25 The Commission rejected all these May hearings the testimony of Mr. Walburg and Mr.
petitions as “untimely,” and seemingly placing great re- Wagner, witnesses for the Department of Interior, and
liance on the testimony of Dr. Perlmutter, concluded: Dr. Raney and Mr. Massmann, witnesses for Scenic Hud-
son, was substantially to the same effect. Indeed, the
“The project will not adversely affect the fish resources Commission in its October 4 order acknowledged that
of the Hudson River provided adequate protective fa- the protective device to which it had previously referred
cilities are installed.” favorably (March 9 order) “may not be adequate to pro-
vide the protection required” (October 4 order).
[**44]
On remand, the Commission should take the whole fish-
Although an opportunity was made available at the May eries question into consideration before deciding whether
hearings for petitioners to submit evidence on protec- the Storm King project is to be licensed.
tive designs, the question of the adequacy of any protec-
tive design was inexplicably excluded by the Commis- The Commission should reexamine all questions on which
sion. we have found the record insufficient and all related mat-
ters. The Commission’s renewed proceedings must include
Recent events illustrate other deficiencies in the Com- as a basic concern the preservation of natural beauty and
mission’s record. In hearings before the House Subcom- of national historic shrines, keeping in mind that, in our
mittee on Fisheries and Wildlife Studying the Hudson affluent society, the cost of a project is only one of several
River Spawning Grounds, 89th Cong. 1st Sess., May 10, factors to be considered. The record as it comes to us fails
11, 1965, Mr. James McBroom, representing the De- markedly to make out a case for the Storm King project
partment of the Interior, stated: on, among other [**46] matters, costs, public convenience
and necessity, and absence [*625] of reasonable alterna-
“Practical screening methods are known which could tives. Of course, the Commission should make every ef-
prevent young-of-the-year striped bass and shad from fort to expedite the new proceedings.
being caught up in the [Storm King] project’s pumps,
but practical means of protection of eggs and larvae Petitioners’ application, pursuant to Federal Power Act §
stages have yet to be devised. Furthermore the location 313(b), 16 U.S.C. § 825l (b), to adduce additional evi-
of the proposed plant appears from available evidence dence concerning alternatives to the Storm King project
to be at or very near the crucial spot as to potential for and the cost and practicality of underground transmis-
harm to the overall production of eggs and larvae of the sion facilities is granted.
Hudson River striped bass. The cumulative effect of un-
mitigated loss of eggs and larvae of striped bass by this The licensing order of March 9 and the two orders of
power project could have a serious effect on the Hudson May 6 are set aside, and the case remanded for further
River striped bass fishery and the dependent fisheries proceedings.
25
The Committee concluded:
“The Hudson River is a spawning ground for shad and striped bass. A multi-million dollar fishing industry, both commercial and sport, has been
built on this process of nature. * * * The Joint Legislative Committee * * goes on record as being unalterably opposed to the granting of Con Ed’s
application, until such time as there is definite, impartial and conclusive proof that the project will not have an adverse effect on the fish life and
spawning process upon which the fishing industry depends for its livelihood.” Preliminary Report 7.
146
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
435 U.S. 519
VERMONT YANKEE NUCLEAR POWER CORP.
v.
NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.
No. 76-419
SUPREME COURT OF THE UNITED STATES
435 U.S. 519; 98 S. Ct. 1197; 1978 U.S. LEXIS 21; 55 L. Ed.
2d 460; 11 ERC (BNA) 1439; 8 ELR 20288
November 28, 1977, Argued
April 3, 1978, Decided *
* Together with No. 76-528, Consumers Power Co. v.
Aeschliman et al., also on certiorari to the same court.
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
DISPOSITION: No. 76-419, 178 U. S. App. D. C. 336, 547 F.2d 633, and No. 76-528,
178 U. S. App. D. C. 325, 547 F.2d 622, reversed and remanded.
CORE TERMS: environmental, fuel, rulemaking, energy ings, but which did not utilize full adjudicatory proce-
conservation, cycle, licensing, license, reactor, dures, the Commission issued a “spent fuel cycle rule”
intervenors, plant, adjudicatory, staff, nuclear, threshold, and concluded that since the environmental effects of
waste, uranium, regulation, reprocessing, Administrative the uranium fuel cycle had been shown to be relatively
Procedure Act, agency action, interim, environmental insignificant, it was unnecessary to apply the rule to the
impact statement, cost-benefit, inadequacy, discovery, licensee’s reports submitted for the operating license prior
reopen, environmental impact, administrative process, to the rule’s effective date or to final environmental state-
nuclear power plant, little doubt ments for which draft environmental statements had been
circulated for comment prior to the effective date. On
SUMMARY: These cases presented questions as to the appeal by certain intervenors from both the license and
proper scope of judicial review of the Atomic Energy the rulemaking proceedings, the United States Court of
Commission’s procedures with regard to the licensing Appeals for the District of Columbia Circuit overturned
of nuclear power plants. In one of the cases (No. 76- the rule and remanded the license determination for fur-
419), the Commission had granted a license to operate a ther proceedings, holding that in the absence of effec-
nuclear power plant following a full, adjudicatory hear- tive rulemaking proceedings, the Commission must deal
ing in which it had excluded the issue of environmental with the environmental impact of fuel reprocessing and
effects of fuel reprocessing. Subsequently, after disposal in individual licensing proceedings, and that the
rulemaking proceedings which included notice and hear- rulemaking proceedings were inadequate (178 App DC
147
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
336, 547 F2d 633). In the other case (No. 76-528), the cedural requirements of the Administrative Procedure Act
Commission had granted a permit for the construction (5 USCS 553) which Congress was willing to have the
of two nuclear reactors following extensive hearings, the courts impose on agencies in conducting rulemaking pro-
examination of a report by the Advisory Committee on cedures, but reviewing courts are generally not free to
Reactor Safeguards, and the issuance of a final environ- impose such additional rights if the agencies have not
mental impact statement. chosen to grant them.
Thereafter, revised guidelines were issued by the Coun- ATOMIC ENERGY
cil on Environmental Quality requiring consideration in
impact statements of energy conservation as one of the Commission regulations and orders — judicial review
alternatives to a proposed project. The Commission re- —
jected a request by certain intervenors to reopen the per-
mit proceedings in order to consider energy conserva- Headnote:
tion alternatives, stating that a threshold test would have
to be met by the intervenors before the Commission In reviewing (1) a rule promulgated by the Atomic En-
would consider such alternatives. On appeal by the ergy Commission requiring quantitative evaluations of
intervenors from the grant of the permit, the United States the environmental hazards of fuel reprocessing or dis-
Court of Appeals for the District of Columbia Circuit posal to be used in the cost-benefit analyses required
remanded the Commission’s decision, holding that the before granting nuclear reactor operating licenses, and
environmental impact statement was fatally defective for (2) an order of the Commission granting a power com-
failure to examine energy conservation as an alternative pany a permit to construct two nuclear reactors, a Fed-
to the construction of the reactors, that the Commission’s eral Court of Appeals improperly engrafts its own no-
decision not to consider energy conservation on the ba- tions of proper procedures upon the Commission and
sis of its threshold test was arbitrary and capricious, and improperly intrudes into the agency’s decisionmaking
that the Advisory’s Committee report was inadequate and process, where it (a) overturned the fuel reprocessing rule
should have been sent back for further elucidation, un- because of inadequate rulemaking procedures, even
derstandable to a layman (178 App DC 325, 547 F2d though there was little doubt that the Commission was
622). in full compliance with all the applicable requirements
of the Administrative Procedure Act (5 USCS 553), and
On certiorari, the United States Supreme Court reversed (b) remanded the grant of the construction permit as ar-
and remanded. In an opinion by Rehnquist, J., expressing bitrary and capricious on the ground that the Commis-
the unanimous view of the seven participating members sion had improperly rejected, on the basis of a threshold
of the court, it was held that the Court of Appeals im- test, consideration in the environmental impact statement
properly engrafted its own notions of proper procedures of energy conversation as an alternative to the construc-
upon the Commission and improperly intruded into the tion of the reactors, and on the further ground that the
Commission’s decisionmaking process, when it (1) over- Commission had improperly failed to send back a report
turned the spent fuel cycle rule in case No. 76-419 be- on the proposed reactors prepared by the Advisory Com-
cause of inadequate rulemaking proceedings, and (2) re- mittee on Reactor Safeguards for further elucidation, un-
manded the grant of the construction permit in case No. derstandable to a layman, of references made in the re-
76-528 on the basis of (a) the failure of the environmental port to general problems relating to nuclear energy.
impact statement to consider energy conservation as an
alternative to the reactors, and (b) the failure of the Advi- APPEAL AND ERROR
sory Committee’s report to elucidate, in a manner under-
standable to a layman, references made in the report dismissal of certiorari — mootness — agency
proceedings —
to other problems of nuclear energy than those directly
related to the reactor project. Headnote:
Blackmun and Powell, J.J., did not participate. A case is not rendered moot—so as to preclude the United
States Supreme Court from reviewing the decision of a
ADMINISTRATIVE LAW Federal Court of Appeals overturning a rule promulgated
by the Atomic Energy Commission—by the Commis-
rulemaking — procedure — judicial review — sion’s promulgation in later proceedings of a new interim
rule and its indication that it intends to complete the later
Headnote: proceedings looking toward the adoption of a final rule
regardless of the outcome of the Supreme Court’s re-
In the exercise of their discretion, agencies are free to view, and the writ of certiorari granted by the Supreme
grant procedural rights in addition to the maximum pro- Court will not be dismissed as having been improvidently
148
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
granted, even though the question of the validity of the tive Procedure Act (5 USCS 553) should be employed.
first rule would remain open on remand, where the Court
of Appeals’ decision raises significant questions about ADMINISTRATIVE LAW
the standards of review, would serve as precedent in other
reviews of agency action, and would continue to play a rulemaking procedures — effect of National Environ-
major role in the instant litigation regardless of the Com- mental Policy Act —
mission’s decisions to press ahead with further
rulemaking proceedings. Headnote:
ATOMIC ENERGY The National Environmental Policy Act (42 USCS 4321
et seq.) cannot serve as the basis for a substantial revi-
reactor licensing proceedings — environmental issues sion of the carefully constructed rulemaking procedural
— specifications of the Administrative Procedure Act (5
USCS 553).
Headnote:
ATOMIC ENERGY
Under the authority of the National Environmental Policy
Act (42 USCS 4321 etseq.), the Atomic Energy Com- Commission rulemaking — procedures — judicial re-
mission has authority to consider the environmental im- view —
pact of spent fuel processes in environmental impact
statements when licensing individual nuclear reactors. Headnote:
ATOMIC ENERGY Under the Administrative Procedure Act (5 USCS 553)
and the National Environmental Policy Act (42 USCS
Atomic Energy Commission procedures — judicial re- 4321 et seq.), a Federal Court of Appeals cannot review
view — and overturn an Atomic Energy Commission rulemaking
proceeding on the basis of the procedural devices em-
Headnote: ployed, or not employed, by the Commission, so long as
the Commission has employed at least the statutory
Three proceedings, in which more than the minimum pro- minima.
cedures specified in the Administrative Procedure Act
(5 USCS 553) were provided, out of the many proceed- ADMINISTRATIVE LAW
ings held by the Atomic Energy Commission, do not es-
tablish the type of long-standing and well-established judicial review — scope —
practice from which it is possible that deviation might
justify judicial intervention. Headnote:
ADMINISTRATIVE LAW A Federal Court of Appeals must, in reviewing the va-
lidity of an agency decision about which there is a con-
rules of procedure — agency discretion — temporaneous explanation, let that action stand or fall
on the propriety of that finding, judged by the appropri-
Headnote: ate standard of review, and must not stray beyond the
judicial province to explore the procedural format or to
Absent constitutional constraints or extremely compel- impose upon the agency its own notion of which proce-
ling circumstances, administrative agencies are free to dures are best or most likely to further some vague, un-
fashion their own rules of procedure and to pursue meth- defined public goal.
ods of inquiry capable of permitting them to discharge
their multitudinous duties. HEALTH
ADMINISTRATIVE LAW statement — alternatives — feasibility —
agency discretion — judicial authority — Headnote:
Headnote: Under the requirement of the National Environmental
Policy Act (42 USCS 4322(c)) that a detailed statement
The discretion of administrative agencies and not that of be prepared by the responsible agency official on alter-
courts is to be exercised in determining when procedural natives to the proposed action, the term “alternatives” is
devices in addition to those specified in the Administra- not self-defining, the concept of alternatives must be
149
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
bounded by some notion of feasibility, and the detailed 2039 and 2232(b), is subsidiary to the report’s main func-
statement of alternatives cannot be found wanting sim- tion of providing technical advice to the Atomic Energy
ply because the agency failed to include every alterna- Commission from a body of experts uniquely qualified
tive device and thought conceivable by the mind of man. to provide assistance, and a report cannot be faulted for
not dealing with every facet of nuclear energy.
HEALTH
ATOMIC ENERGY
National Environmental Policy Act — alternatives —
agency mandate — COURTS
Headnote: nuclear energy policy — judicial review —
The concept of alternatives under the provision of the Headnote:
National Environmental Act (42 USCS 4322(c)) requir-
ing a detailed statement to be prepared by the responsi- The fundamental policy questions with regard to nuclear
ble agency official for agency action on alternatives to energy appropriately resolved in Congress and in the state
the proposed action, is an evolving one, requiring the legislatures are not subject to reexamination in the federal
agency to explore more or fewer alternatives as they be- courts under the guise of judicial review of agency action.
come better known and understood.
SYLLABUS: In No. 76-419, after extensive hearings
HEALTH before the Atomic Safety and Licensing Board (Licens-
ing Board) and over respondents’ objections, the Atomic
environmental impact proceedings — intervenors’ com- Energy Commission (AEC) granted petitioner Vermont
ments — Yankee Nuclear Power Corp. a license to operate a nu-
clear power plant, and this ruling was affirmed by the
Headnote: Atomic Safety and Licensing Appeal Board (Appeal
Board). Subsequently, the AEC, specifically referring to
While the National Environmental Policy Act (42 USCS the Appeal Board’s decision, instituted rulemaking pro-
4321 et seq.) places upon an agency the obligation to ceedings to deal with the question of considering envi-
consider every significant aspect of the environmental ronmental effects associated with the uranium fuel cycle
impact of a proposed action, it is incumbent upon in the individual cost-benefit analyses for light-water-
intervenors who wish to participate to structure their cooled nuclear power reactors. In these proceedings the
participation so that it is meaningful and alerts the agency Licensing Board was not to use full formal adjudicatory
as to the intervenors’ positions and contentions; com- procedures. Eventually, as a result of these rulemaking
ments must be significant enough to step over a thresh- proceedings, the AEC issued a so-called fuel cycle rule.
old requirement of materiality and cannot merely state At the same time the AEC approved the procedures used
that particular mistakes were made, but must show why at the hearing; indicated that the record, including the
the mistakes were of possible significance in the results. Environmental Survey, provided an adequate data base
for the rule adopted; and ruled that to the extent the rule
ADMINISTRATIVE LAW differed from the Appeal Board’s decision such decision
had no further precedential significance, but that since
judicial review — agency judgment — the environmental effects of the uranium fuel cycle had
been shown to be relatively insignificant, it was unnec-
Headnote: essary to apply the rule to Vermont Yankee’s environ-
mental reports submitted prior to the rule’s effective date
A court should not substitute its judgment for that of an or to the environmental statements circulated for com-
agency as to the environmental consequences of its ac- ment prior to such date. Respondents appealed from both
tions. the AEC’s adoption of the fuel cycle rule and its deci-
sion to grant Vermont Yankee’s license. With respect to
ATOMIC ENERGY the license, the Court of Appeals first ruled that in the
absence of effective rulemaking proceedings, the AEC
licensing proceedings — report on nuclear safety — must deal with the environmental impact of fuel reproc-
essing and disposal in individual licensing proceedings,
Headnote: and went on to hold that despite the fact that it appeared
that the AEC employed all the procedures required by
The function of publication of a report as to the safety of the Administrative Procedure Act (APA) in 5 U. S. C. §
a proposed nuclear reactor, prepared by the Advisory 553 (1976 ed.) and more, the rulemaking proceedings
Committee on Nuclear Safeguards pursuant to 42 USCS were inadequate and overturned the rule, [***3] and ac-
150
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
cordingly the AEC’s determination with respect to the tory authority when it considered the environmental
license was also remanded for further proceedings. In impact of the fuel processes when licensing nuclear
No. 76-528, after examination of a report of the Advi- reactors.
sory Committee on Reactor Safeguards (ACRS) and ex-
tensive hearings, and over respondent intervenors’ ob- (b) Nothing in the APA, the National Environmental
jections, the AEC granted petitioner Consumers Power Policy Act of 1969 (NEPA), the circumstances of
Co. a permit to construct two nuclear reactors, and this the case in No. 76-419, the nature of the issues be-
ruling was affirmed by the Appeal Board. At about this ing considered, past agency practice, or the statu-
time the Council on Environmental Quality revised its tory mandate under which the AEC operates permit-
regulations governing the preparation of environmental ted the Court of Appeals to review and overturn the
impact statements so as to mention for the first time the rulemaking proceeding on the basis of the procedural
necessity for considering energy conservation as one of devices employed (or not employed) by the AEC so
the alternatives to a proposed project. In view of this long as the AEC used at least the statutory minima,
development and a subsequent AEC ruling indicating that a matter about which there is no doubt.
all evidence of energy conservation should not necessar-
ily be barred at the threshold of AEC proceedings, one (c) As to whether the challenged rule in No. 76-419 finds
of the intervenors moved to reopen the permit proceed- sufficient justification in the administrative proceed-
ings so that energy conservation could be considered, ings that it should be upheld by the reviewing court,
but the AEC declined to reopen the proceedings. Re- the case is remanded so that the Court of Appeals
spondents appealed from the granting of the construc- may review the rule as the APA provides. [***6] The
tion permit. court should engage in this kind of review and not
stray beyond the judicial province to explore the pro-
The Court of Appeals held that the environmental im- cedural format or to impose upon the agency its own
pact statement for the construction of the reactors was notion of which procedures are “best” or most likely
fatally defective for failure to examine energy conserva- to further some vague, undefined public good.
tion as an alternative to plants of this size, and that the
ACRS report was inadequate and should have been re- (d) In No. 76-528, the Court of Appeals was wrong in
turned to the ACRS for further elucidation, understand- holding that rejection of energy conservation on the
able to a layman, and remanded the case for appropriate basis of the “threshold test” was capricious and ar-
consideration of waste disposal and other unaddressed bitrary as being inconsistent with the NEPA’s basic
issues. mandate to the AEC, since the court’s rationale ba-
sically misconceives not only the scope of the agen-
Held: cy’s statutory responsibility, but also the nature of
the administrative process, the thrust of the agen-
1. Generally speaking, 5 U. S. C. § 553 (1976 ed.) es- cy’s decision, and the type of issues the intervenors
tablishes the maximum procedural requirements that were trying to raise. The court seriously
Congress was willing to have the courts impose upon mischaracterized the AEC’s “threshold test” as plac-
federal agencies in conducting rulemaking proceedings, ing “heavy substantive burdens on intervenors.” On
and while agencies are free to grant additional proce- the contrary the AEC’s stated procedure as requir-
dural rights in the exercise of their discretion, reviewing ing a showing sufficient to require reasonable minds
courts are generally not free to impose them if the agen- to inquire further is a procedure well within the agen-
cies have not chosen to grant them. And, even apart from cy’s discretion.
the APA, the formulation of procedures should basically
be left within the discretion of the agencies to which Con- (e) The Court of Appeals’ holding in No. 76-528 that
gress has confided the responsibility for substantive judg- the Licensing Board should have returned the ACRS
ments. report to the ACRS for further elaboration is errone-
ous as being an unjustifiable intrusion into the ad-
2. The Court of Appeals in these cases has seriously ministrative process, and there is nothing in the rel-
misread or misapplied such statutory and decisional law evant statutes to justify what the court did.
cautioning reviewing courts against engrafting their own
notions of proper procedures upon agencies entrusted COUNSEL: Thomas G. Dignan, Jr., argued the cause
with substantive functions by Congress, and moreover for petitioner in No. 76-419. With him on the briefs were
as to the Court of Appeals’ decision with respect to agency G. Marshall Moriarty, William L. Patton, and R. K. Gad
action taken after full adjudicatory hearings, it improp- III. Charles A. Horsky argued the cause for petitioner in
erly intruded into the agency’s decision-making proc- No. 76-528. With him on the briefs was Harold F. Reis.
ess.
Deputy Solicitor General Wallace argued the cause for
(a) In No. 76-419, the AEC acted well within its statu- the federal respondents in support of petitioners in both
151
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
cases pursuant to this Court’s Rule 21 (4). On the briefs and David Northrup, Assistant Attorney General; James
were Solicitor General McCree, Acting Assistant Attor- A. Redden, Attorney General of Oregon, and Richard
ney General Liotta, Harriet S. Shapiro, Edmund B. Clark, M. Sandvik, Assistant Attorney General; Robert P. Kane,
John J. Zimmerman, Peter L. Strauss, and Stephen F. Attorney General of Pennsylvania, and Douglas Blazey,
Eilperin. Henry V. Nickel and George C. Freeman, Jr., Assistant Attorney General; John L. Hill, Attorney Gen-
filed a brief for respondents Baltimore Gas & Electric eral of Texas, and Troy C. Webb and Paul G. Gosselink,
Co. et al. in support of petitioner in No. 76-419 pursuant Assistant Attorneys General; Robert B. Hansen, Attor-
to Rule 21 (4). ney General of Utah, and William C. Quigley; M. Jerome
Diamond, Attorney General of Vermont, and Benson D.
Richard E. Ayres argued the cause and filed briefs for Scotch, Assistant Attorney General; and Bronson C.
respondents in No. 76-419. Myron M. Cherry argued the LaFollette, Attorney General of Wisconsin, and John E.
cause for the nonfederal respondents in No. 76-528. With Kofron, Assistant Attorney General. George C. Deptula
him on the brief was Peter A. Flynn. + and James N. Barnes filed a brief for the Union of Con-
cerned Scientists Fund, Inc., as amicus curiae urging
+ Briefs of amici curiae urging reversal were filed by affirmance in No. 76-419.
Cameron F. MacRae, Leonard M. Trosten, and Harry H.
Voigt for Edison Electric Institute et al. in No. 76-419; Ronald A. Zumbrun, Raymond M. Momboisse, Robert
by Leonard J. Theberge, John M. Cannon, Edward H. K. Best, Albert Ferri, Jr., and W. Hugh O’Riordan filed a
Dowd, and L. Manning Muntzing for Hans A. Bethe et brief for the Pacific Legal Foundation as amicus curiae
al. in No. 76-528; and by Max Dean and David S. Heller in both cases.
for the U.S. Labor Party in No. 76-528.
JUDGES:
Louis J. Lefkowitz, Attorney General of New York,
Samuel A. Hirshowitz, First Assistant Attorney General, REHNQUIST, J., delivered the opinion of the Court, in
Philip Weinberg and John F. Shea III, Assistant Attor- which all other Members joined except BLACKMUN
neys General; Cabanne Howard, Assistant Attorney Gen- and POWELL, JJ., who took no part in the consideration
eral of Maine; and Ellyn Weiss, Assistant Attorney Gen- or decision of the cases.
eral of Massachusetts, filed a brief for 24 named States
as amici curiae urging affirmance in both cases, joined OPINION BY: REHNQUIST, J.
by officials for their respective States as follows: William
J. Baxley, Attorney General of Alabama, and Henry H. OPINION: MR. JUSTICE REHNQUIST delivered the
Caddell, Assistant Attorney General; Richard R. Wier, opinion of the Court. In 1946, Congress enacted the
Jr., Attorney General of Delaware, and June D. MacArtor, Administrative Procedure Act, which as we have noted
Deputy Attorney General; Robert L. Shevin, Attorney elsewhere was not only “a new, basic and comprehen-
General of Florida, and Marty Friedman, Assistant At- sive regulation of procedures in many agencies,” Wong
torney General; Arthur K. Bolton, Attorney General of Yang Sung v. McGrath, 339 U.S. 33 (1950), but was also
Georgia, and Robert Bomar, Senior Assistant Attorney a legislative enactment which settled “long-continued and
General; William J. Scott, Attorney General of Illinois, hard-fought contentions, and enacts a formula upon
and Richard W. Cosby, Assistant Attorney General; Curt which opposing social and political forces have come to
T. Schneider, Attorney General of Kansas, and William rest.” Id., at 40. Section 4 of the Act, 5 U. S. C. § 553
Griffin, Assistant Attorney General; Robert F. Stephens, (1976 ed.), dealing with rulemaking, [**1202] requires
Attorney General of Kentucky, and David Short, Assist- in subsection (b) that [*524] “notice of proposed rule
ant Attorney General; William J. Guste, Attorney Gen- making shall be published in the Federal Register . . . ,”
eral of Louisiana, and Richard M. Troy, Assistant Attor- describes the contents of that notice, and goes on to re-
ney General; Joseph E. Brennan, Attorney General of quire in subsection (c) that after the notice the agency
Maine; Francis B. Burch, Attorney General of Maryland, “shall give interested persons an opportunity to partici-
and Warren K. Rich, Assistant Attorney General; Francis pate in the rule making through submission of written
X. Bellotti, Attorney General of Massachusetts; Frank J. data, views, or arguments with or without opportunity
Kelley, Attorney General of Michigan, and Stewart H. for oral presentation. After consideration of the relevant
Freeman, Assistant Attorney General; Warren R. matter presented, the agency shall incorporate in the rules
Spannaus, Attorney General of Minnesota, and Jocelyn adopted a concise general statement of their basis and
F. Olson, Assistant Attorney General; John Ashcroft, At- purpose.” Interpreting this provision of the Act in United
torney General of Missouri, and Robert H. Lindholm, States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742
Assistant Attorney General; Toney Anaya, Attorney Gen- (1972), and United States v. Florida East Coast R. Co.,
eral of New Mexico, and James Huber, Assistant Attor- 410 U.S. 224 (1973), we held that generally speaking
ney General; Rufus L. Edmisten, Attorney General of this section of the Act established the maximum proce-
North Carolina, and Dan Oakley, Assistant Attorney dural requirements which Congress was willing to have
General; William J. Brown, Attorney General of Ohio, the courts impose upon agencies in conducting
152
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
rulemaking procedures. 1 Agencies are free to grant addi- sion with respect to agency action taken after full adju-
tional procedural rights in the exercise of their discre- dicatory hearings. We again conclude that the court im-
tion, but reviewing courts are generally not free to im- properly intruded into the agency’s decisionmaking proc-
pose them if the agencies have not chosen to grant them. ess, making it necessary for us to reverse and remand
This is not to say necessarily that there are no circum- with respect to this part of the cases also.
stances which would ever justify a court in overturning
agency action because of a failure to employ procedures Under the Atomic Energy Act of 1954, 68 Stat. 919, as
beyond those required by the statute. But such circum- amended, 42 U. S. C. § 2011 et seq., the Atomic Energy
stances, if they exist, are extremely rare. Commission 2 was given broad regulatory authority over
the development of nuclear energy. Under the terms of
Even apart from the Administrative Procedure Act this the Act, a utility seeking to construct and operate a nu-
Court has for more than four decades emphasized that clear power plant must obtain a separate permit or li-
the formulation of procedures was basically to be left cense at both the construction and the operation stage of
within the discretion of the agencies to which Congress the project. See 42 U. S. C. §§ 2133, 2232, 2235, 2239.
had confided the responsibility for substantive judgments. In order to obtain the construction permit, the utility must
In FCC v. Schreiber, 381 U.S. 279, 290 (1965), the Court file a preliminary safety analysis report, an environmen-
explicated [*525] this principle, describing it as “an out- tal report, and certain information regarding the antitrust
growth of the congressional determination that adminis- implications of the proposed project. See 10 CFR §§
trative agencies and administrators will be familiar with 2.101, 50.30 (f), 50.33a, 50.34 (a) (1977). This applica-
the industries which they regulate and will be in a better tion then undergoes exhaustive review by the Commis-
position than federal courts or Congress itself to design sion’s staff and by the Advisory Committee on Reactor
procedural rules adapted to the peculiarities of the in- Safeguards (ACRS), a group of distinguished experts in
dustry and the tasks of the agency involved.” The Court the field of atomic energy. Both groups submit to the
there relied on its earlier case of FCC v. Pottsville Broad- Commission their own evaluations, which then become
casting Co., 309 U.S. 134, 138 (1940), where it had stated part of the record of the utility’s application.3 See 42 U.
that a provision dealing with the conduct of business by S. C. §§ 2039, 2232 (b). The Commission staff also un-
the Federal Communications Commission delegated to dertakes the review required by the National Environ-
the Commission the power to resolve “subordinate ques- mental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.
tions of procedure . . . [such as] the scope of the inquiry, S. C. § 4321 et seq., and prepares a draft environmental
whether applications should be heard contemporaneously impact statement, which, after being circulated for com-
or successively, whether parties should be allowed to ment, 10 CFR §§ 51.22-51.25 (1977), is revised and be-
intervene in one another’s proceedings, and similar ques- comes a final environmental impact statement. § 51.26.
tions.” It is in the light of this background of statutory Thereupon a three-member Atomic Safety and Licens-
and decisional law that we granted certiorari to review ing Board conducts a public adjudicatory hearing, 42 U.
two judgments of the Court of Appeals for the District S. C. § 2241, and reaches a decision 4 which can be ap-
of Columbia Circuit because of our concern that they pealed to the Atomic Safety and Licensing Appeal Board,
had seriously misread or misapplied this statutory and and currently, in the Commission’s discretion, to the
decisional law cautioning reviewing courts against en- Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787
grafting their own notions of proper procedures upon (1977). The final agency decision may be appealed to
agencies entrusted with substantive functions by Con- the courts of appeals. 42 U. S. C. § 2239; 28 U. S. C. §
gress. 429 U.S. 1090 (1977). We conclude that the Court 2342. The same sort of process occurs when the utility
of Appeals has done just that in these cases, and we there- applies for a license to operate the plant, 10 CFR § 50.34
fore remand them to it for further proceedings. We also (b) (1977), except that a hearing need only be held in
find it necessary to examine the Court of Appeals’ deci- contested cases and may be limited to the matters in con-
1
While there was division in this Court in United States v. Florida East Coast R. Co. with respect to the constitutionality of such an interpre-
tation in a case involving ratemaking, which Mr. Justice Douglas and MR. JUSTICE STEWART felt was “adjudicatory” within the terms of the
Act, the cases in the Court of Appeals for the District of Columbia Circuit which we review here involve rulemaking procedures in their most
pristine sense.
2
The licensing and regulatory functions of the Atomic Energy Commission (AEC) were transferred to the Nuclear Regulatory Commission
(NRC) by the Energy Reorganization Act of 1974, 42 U. S. C. § 5801 et seq. (1970 ed., Supp. V). Hereinafter both the AEC and NRC will be
referred to as the Commission.
3
ACRS is required to review each construction permit application for the purpose of informing the Commission of the “hazards of proposed or
existing reactor facilities and the adequacy of proposed reactor safety standards.” 42 U. S. C. § 2039.
4
The Licensing Board issues a permit if it concludes that there is reasonable assurance that the proposed plant can be constructed and operated
without undue risk, 42 U. S. C. § 2241; 10 CFR § 50.35 (a) (1977), and that the environmental cost-benefit balance favors the issuance of a
permit.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
troversy. See 42 U. S. C. § 2239 (a); 10 CFR § 2.105 a table, along with the other relevant factors, to deter-
(1977); 10 CFR pt. 2, App. A, V (f) (1977). 5 mine the overall cost-benefit balance for each operating
license. See id., at 356-357.
These cases arise from two separate decisions of the Court
of Appeals for the District of Columbia Circuit. In the Much of the controversy in this case revolves around the
first, the court remanded a decision of the Commission procedures used in the rulemaking hearing which com-
to grant a license to petitioner Vermont Yankee Nuclear menced in February 1973. In a supplemental notice of
Power Corp. to operate a nuclear power plant. Natural hearing the Commission indicated that while discovery
Resources Defense Council v. NRC, 178 U. S. App. D. or cross-examination would not be utilized, the Envi-
C. 336, 547 F.2d 633 (1976). In the second, the court ronmental Survey would be available to the public be-
remanded a decision of that same agency to grant a per- fore the hearing along with the extensive background
mit to petitioner Consumers Power Co. to construct two documents cited therein. All participants would be given
pressurized water nuclear reactors to generate electric- a reasonable opportunity to present their position and
ity and steam. Aeschliman v. NRC, 178 U. S. App. D. C. could be represented by counsel if they so desired. Writ-
325, 547 F.2d 622 (1976). ten and, time permitting, oral statements would be re-
ceived and incorporated into the record. All persons giv-
In December 1967, after the mandatory adjudicatory ing oral statements would be subject to questioning by
hearing and necessary review, the Commission granted the Commission. At the conclusion of the hearing, a tran-
petitioner Vermont Yankee a permit to build a nuclear script would be made available to the public and the
power plant in Vernon, Vt. See 4 A. E. C. 36 (1967). record would remain open for 30 days to allow the filing
Thereafter, Vermont Yankee applied for an operating li- of supplemental written statements. See generally id., at
cense. Respondent Natural Resources Defense Council 361-363. More than 40 individuals and organizations
(NRDC) objected to the granting [*528] of a license, representing a wide variety of interests submitted writ-
however, and therefore a hearing on the application com- ten comments. On January 17, 1973, the Licensing Board
menced on August 10, 1971. Excluded from considera- held a planning session to schedule the appearance of
tion at the hearings, over NRDC’s objection, was the is- witnesses and to discuss methods for compiling a record.
sue of the environmental effects of operations to reproc- The hearing was held on February 1 and 2, with partici-
ess fuel or dispose of wastes resulting from the reproc- pation by a number of groups, including the Commis-
essing operations. 6 This ruling was affirmed by the Ap- sion’s staff, the United States Environmental Protection
peal Board in June 1972. Agency, a manufacturer of reactor equipment, a trade
association from the [***19] nuclear industry, a group
In November 1972, however, the Commission, making of electric utility companies, and a group called Con-
specific reference to the Appeal Board’s decision with solidated National Intervenors which represented 79
respect to the Vermont Yankee license, instituted groups and individuals including respondent NRDC.
rulemaking proceedings “that would specifically deal
with the question of consideration of environmental ef- After the hearing, the Commission’s staff filed a supple-
fects associated with the uranium fuel cycle in the indi- mental document for the purpose of clarifying and re-
vidual cost-benefit analyses for light water cooled nu- vising the Environmental Survey. Then the Licensing
clear power reactors.” App. 352. The notice of proposed Board forwarded its report to the Commission without
rulemaking offered two alternatives, both predicated on rendering any decision. The Licensing [**1205] Board
a report prepared by the Commission’s staff entitled identified as the principal procedural question the pro-
Environmental Survey of the Nuclear Fuel Cycle. The priety of declining to use full formal adjudicatory proce-
first would have required no quantitative evaluation of dures. The major substantive issue was the technical ad-
the environmental hazards of fuel reprocessing or dis- equacy of the Environmental Survey.
posal because the Environmental Survey had found them
to be slight. The second would have specified numerical In April 1974, the Commission issued a rule which
values for the environmental impact of this part of the adopted the second of the two proposed alternatives de-
fuel cycle, which values would then be incorporated into scribed above. The Commission also approved the pro-
5
When a license application is contested, the Licensing Board must find reasonable assurance that the plant can be operated without undue
risk and will not be inimical to the common defense and security or to the health and safety of the public. See 42 U. S. C. § 2232 (a); 10 CFR §
50.57 (a) (1977). The Licensing Board’s decision is subject to review similar to that afforded the Board’s decision with respect to a construction
permit
6
The nuclear fission which takes place in light-water nuclear reactors apparently converts its principal fuel, uranium, into plutonium, which is
itself highly radioactive but can be used as reactor fuel if separated from the remaining uranium and radioactive waste products. Fuel reprocess-
ing refers to the process necessary to recapture usable plutonium. Waste disposal, at the present stage of technological development, refers to the
storage of the very long lived and highly radioactive waste products until they detoxify sufficiently that they no longer present an environmental
hazard. There are presently no physical or chemical steps which render this waste less toxic, other than simply the passage of time.
154
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
cedures used at the hearing,7 and indicated that the record, denied the various discovery requests directed to the
including the Environmental Survey, provided an “ad- ACRS. Hearings were then held on numerous radiologi-
equate data base for the regulation adopted.” Id., at 392. cal health and safety issues.10 Thereafter, the Commis-
Finally, the Commission ruled that to the extent the rule sion’s staff issued a draft environmental impact state-
differed from the Appeal Board decisions in Vermont ment. Saginaw submitted 119 environmental contentions
Yankee “those decisions have no further precedential sig- which were both comments on the proposed draft state-
nificance,” id., at 386, but that since “the environmental ment and a statement of Saginaw’s position in the
effects of the uranium fuel cycle have been shown to be upcoming hearings. The staff revised the statement and
relatively insignificant, . . . it is unnecessary to apply the issued a final environmental statement in March 1972.
amendment to applicant’s environmental reports submit- Further hearings were then conducted during May and
ted prior to its effective date or to Final Environmental June 1972. Saginaw, however, choosing not to appear at
Statements for which Draft Environmental Statements or participate in these latter hearings, indicated that it
have been circulated for comment prior to the effective had “no conventional findings of fact to set forth” and
date,” id., at 395. had not “chosen to search the record and respond to this
proceeding by submitting citations of matters which we
Respondents appealed from both the Commission’s adop- believe were proved or disproved.” See App. 190 n. 9.
tion of the rule and its decision to grant Vermont Yan- But the Licensing Board, recognizing its obligations to
kee’s license to the Court of Appeals for the District of “independently consider the final balance among con-
Columbia Circuit. flicting environmental factors in the record,” neverthe-
less treated as contested those issues “as to which
In January 1969, petitioner Consumers Power Co. ap- intervenors introduced affirmative evidence or engaged
plied for a permit to construct two nuclear reactors in in substantial cross examination.” Id., at 205, 191.
Midland, [*531] Mich. Consumers Power’s application
was examined by the Commission’s staff and the ACRS. At issue now are 17 of those 119 contentions which are
The ACRS issued reports which discussed specific prob- claimed to raise questions of “energy conservation.” The
lems and recommended solutions. It also made reference Licensing Board indicated that as far as appeared from
to “other problems” of a more generic nature and sug- the record, the demand for the plant was made up of nor-
gested that efforts should be made to resolve them with mal industrial and residential use. Id., at 207. It went on
respect to these as well as all other projects.8 Two groups, to state that it was “beyond our province to inquire into
one called Saginaw and another called Mapleton, inter- whether the customary uses being made of electricity in
vened and opposed the application.9 Saginaw filed with our society are ‘proper’ or ‘improper.’” Ibid. With re-
the Board a number of environmental contentions, di- spect to claims that Consumers Power stimulated demand
rected over 300 interrogatories to the ACRS, attempted by its advertising the Licensing Board indicated that “[no]
to depose the chairman of the ACRS, and requested dis- evidence was offered on this point and absent some evi-
covery of various ACRS documents. The Licensing Board dence that Applicant is creating abnormal demand, the
7
The Commission stated:
“In our view, the procedures adopted provide a more than adequate basis for formulation of the rule we adopted. All parties were fully heard.
Nothing offered was excluded. The record does not indicate that any evidentiary material would have been received under different procedures.
Nor did the proponent of the strict ‘adjudicatory’ approach make an offer of proof — or even remotely suggest — what substantive matters it
would develop under different procedures. In addition, we note that 11 documents including the Survey were available to the parties several
weeks before the hearing, and the Regulatory staff, though not requested to do so, made available various drafts and handwritten notes. Under all
of the circumstances, we conclude that adjudicatory type procedures were not warranted here.” App. 389-390 (footnote omitted).
8
The ACRS report as quoted, 178 U. S. App. D. C., at 333, 547 F.2d, at 630, stated:
“Other problems related to large water reactors have been identified by the Regulatory Staff and the ACRS and cited in previous ACRS reports.
The Committee believes that resolution of these items should apply equally to the Midland Plant Units 1 & 2.
“The Committee believes that the above items can be resolved during construction and that, if due consideration is given to these items, the
nuclear units proposed for the Midland Plant can be constructed with reasonable assurance that they can be operated without undue risk to the
health and safety of the public.”
9
Saginaw included the Saginaw Valley Nuclear Study Group, the Citizens Committee for Environmental Protection of Michigan, the United
Automobile Workers International, and three other environmental groups. Mapleton included Nelson Aeschliman and five other residents of a
community near the proposed plantsite. Mapleton did not raise any contentions relating to energy conservation.
10
Pursuant to the regulations then in effect, the Licensing Board refused to consider most of the environmental issues in this first set of hearings.
On the last day of those hearings, however, the Court of Appeals for the District of Columbia Circuit decided Calvert Cliffs’ Coordinating Comm.
v. AEC, 146 U. S. App. D. C. 33, 449 F.2d 1109 (1971), which invalidated the Commission’s NEPA regulations. One effect of that decision was
to require that environmental matters be considered in pending proceedings, including this one. Accordingly, the Commission revised its regu-
lations and then undertook an extensive environmental review of the proposed nuclear plants, requiring Consumers Power to file a lengthy
environmental report. Thereafter the Commission’s staff prepared the draft environmental impact statement discussed in text.
155
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Board did not consider the question.” Id., at 207-208. phasized that “[particularly] in these circumstances,
The Licensing Board also failed to consider the environ- Saginaw’s complaint that it was not granted a hearing on
mental effects of fuel reprocessing or disposal of radio- alleged energy conservation issues comes with ill
active wastes. The Appeal Board ultimately affirmed the grace.” 11 Id., at 342. And in response to Saginaw’s con-
Licensing Board’s grant of a construction permit and the tention that regardless of whether it properly raised the
Commission declined to further review the matter. issues, the Licensing Board must consider all environ-
mental issues, the Commission basically agreed, as did
At just about the same time, the Council on Environ- the Board itself, but further reasoned that the Board must
mental Quality revised its regulations governing the have some workable procedural rules and these rules “in
preparation of environmental impact statements. 38 Fed. this setting must take into account that energy conserva-
Reg. 20550 (1973). [***25] The regulations mentioned tion is a novel and evolving concept. NEPA ‘does not
for the first time the necessity of considering in impact require a “crystal ball” inquiry.’ Natural Resources
statements energy conservation as one of the alternatives Defense Council v. Morton, [148 U. S. App. D. C. 5, 15,
to a proposed project. The new guidelines were to apply 458 F.2d 827, 837 (1972)]. This consideration has led us
only to final impact statements filed after January 28, to hold that we will not apply Niagara retroactively. As
1974. Id., at 20557. Thereafter, on November 6, 1973, we gain experience on a case-by-case basis and hope-
more than a year after the record had been closed in the fully, feasible energy conservation techniques emerge,
Consumers Power case and while that case was pending the applicant, staff, and licensing boards will have obli-
before the Court of Appeals, the Commission ruled in gations to develop an adequate record on these issues in
another case that while its statutory power to compel con- appropriate cases, whether or not they are raised by
servation was not clear, it did not follow that all evidence
of energy conservation issues should therefore be barred intervenors. “However, at this emergent stage of energy
at the threshold. In re Niagara Mohawk Power Corp., 6 conservation principles, intervenors also have their re-
A. E. C. 995 (1973). Saginaw then moved the Commis- sponsibilities. They must state clear and reasonably spe-
sion to clarify its ruling and reopen the Consumers Power cific energy conservation contentions in a timely fash-
proceedings. ion. Beyond that, they have a burden of coming forward
with some [*535] affirmative showing if they wish to
In a lengthy opinion, the Commission declined to reo- have these novel contentions explored further.” 12 Id., at
pen the proceedings. The Commission first ruled it was 344 (footnotes omitted). Respondents then challenged
required to consider only energy conservation alterna- the granting of the construction permit in the Court of
tives which were “‘reasonably available,’” would in their Appeals for the District of Columbia Circuit.
aggregate effect curtail demand for electricity to a level
at which the proposed facility would not be needed, and With respect to the challenge of Vermont Yankee’s li-
were [***26] susceptible of a reasonable degree of cense, the court first ruled that in the absence of effec-
proof. App. 332. It then determined, after a thorough tive rulemaking proceedings,13 the Commission must deal
examination of the record, that not all of Saginaw’s con- with the environmental impact of fuel reprocessing and
tentions met these threshold tests. Id., at 334-340. It fur- disposal in individual licensing proceedings. 178 U. S.
ther determined [**1207] that the Board had been will- App. D. C., at 344, 547 F.2d, at 641. The court then ex-
ing at all times to take evidence on the other conten- amined the rulemaking proceedings and, despite the fact
tions. Saginaw had simply failed to present any such that it appeared that the agency employed all the proce-
evidence. The [*534] Commission further criticized dures required by 5 U. S. C. § 553 (1976 ed.) and more,
Saginaw for its total disregard of even those minimal the court determined the proceedings to be inadequate
procedural formalities necessary to give the Board some and overturned the rule. Accordingly, the Commission’s
idea of exactly what was at issue. The Commission em- determination with respect to Vermont Yankee’s license
11
The Licensing Board had highlighted this same problem in its initial decision, noting “that the failure to propose proper findings and conclu-
sions has greatly complicated the task of the Board and has made it virtually impossible in some instances to know whether particular issues are
in fact contested.” App. 190 n. 10. The Appeal Board was even less charitable, noting that that “[participation] in this manner, in our opinion,
subverts the entire adjudicatory process.” Id., at 257.
12
In what was essentially dictum, the Commission also ruled, after considering the various relevant factors — such as the extent to which the
new rule represents a departure from prior practice, the degree of reliance on past practice and consequent burdens imposed by retroactive
application of the rule — that the rule enunciated in Niagara should not be applied retroactively to cases which had progressed to final order and
issuance of construction permits before Niagara was decided. App. 337.
13
In the Court of Appeals no one questioned the Commission’s authority to deal with fuel cycle issues by informal rulemaking as opposed to
adjudication. 178 U. S. App. D. C., at 345-346, 547 F.2d, at 642-643. Neither does anyone seriously question before this Court the Commission’s
authority in this respect.
156
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
was also remanded for further proceedings.14 178 U. S. no longer presented by the record in this case. The Com-
App. D. C., at 358, 547 F.2d, at 655. mission does not contend that it is not required to con-
sider the environmental impact of the spent fuel proc-
With respect to the permit to Consumers Power, the court esses when licensing nuclear power plants. Indeed, the
first held that the environmental impact statement for Commission has publicly stated subsequent to the Court
construction of the Midland reactors was fatally defec- of Appeals’ decision in the instant case that considera-
tive for [*537] failure to examine energy conservation tion of the environmental impact of the back end of the
as an alternative to a plant of this size. 178 U. S. App. D. fuel cycle in “the environmental impact statements for
C., at 331, 547 F.2d, at 628. The court also thought the individual LWR’s [light-water power reactors] would rep-
report by ACRS was inadequate, although it did not agree resent a full and candid assessment of costs and benefits
that discovery from individual ACRS members was the consistent with the legal requirements and spirit of
proper way to obtain further explication of the report. NEPA.” 41 Fed. Reg. 45849 (1976). Even prior to the
Court of Appeals’ decision the Commission implicitly
Instead, the court held that the Commission should have agreed that it would consider the back end of the fuel
sua sponte sent the report back to the ACRS for further cycle in all licensing proceedings: It indicated that it was
elucidation of the “other problems” and their resolution. not necessary to reopen prior licensing proceedings be-
Id., at 335, 547 F.2d, at 632. Finally, the court ruled that cause “the environmental effects of the uranium fuel cy-
the fuel cycle issues in this case were controlled by cle have been shown to be relatively insignificant,” and
NRDC v. NRC, discussed above, and remanded for ap- thus incorporation of those effects into the cost-benefit
propriate consideration of waste disposal and other analysis would not change the results of such licensing
unaddressed fuel cycle issues as described in that opin- proceedings. App. 395. Thus, at this stage of the proceed-
ion. 178 U. S. App. D. C., at 335, 547 F.2d, at 632. ings the only question presented for review in this regard
is whether the Commission may consider the environ-
A Petitioner Vermont Yankee first argues that the Com- mental impact of the fuel processes when licensing nu-
mission may grant a [**1209] license to operate a nu- clear reactors. In addition to the weight which normally
clear reactor without any consideration of waste disposal attaches to the agency’s determination of such a ques-
and fuel reprocessing. We find, however, that this issue is tion, other reasons support the Commission’s conclusion.
14
After the decision of the Court of Appeals the Commission promulgated a new interim rule pending issuance of a final rule. 42 Fed. Reg.
13803 (1977). See Vermont Yankee Nuclear Power Corp., 5 N. R. C. 717 (1977). The Commission then, at the request of the New England
Coalition on Nuclear Pollution, applied the interim rule to Vermont Yankee and determined that the cost-benefit analysis was still in the plant’s
favor. Vermont Yankee Nuclear Power Corp., 6 N. R. C. 25 (1977). That decision is presently on appeal to the Court of Appeals for the First
Circuit. The Commission has also indicated in its brief that it intends to complete the proceedings currently in progress looking toward the
adoption of a final rule regardless of the outcome of this case. Brief for Federal Respondents 37 n. 36. Following oral argument, respondent
NRDC, relying on the above facts, filed a suggestion of mootness and a motion to dismiss the writ of certiorari as improvidently granted. We
hold that the case is not moot, and deny the motion to dismiss the writ of certiorari as improvidently granted.
Upon remand, the majority of the panel of the Court of Appeals is entirely free to agree or disagree with Judge Tamm’s conclusion that the rule
pertaining to the back end of the fuel cycle under which petitioner Vermont Yankee’s license was considered is arbitrary and capricious within the
meaning of § 10 (e) of the Administrative Procedure Act, 5 U. S. C. § 706 (1976 ed.), even though it may not hold, as it did in its previous opinion,
that the rule is invalid because of the inadequacy of the agency procedures. Should it hold the rule invalid, it appears in all probability that the
Commission will proceed to promulgate a rule resulting from rule-making proceedings currently in progress. Brief for Federal Respondents 37
n. 36. In all likelihood the Commission would then be required, under the compulsion of the court’s order, to examine Vermont Yankee’s license
under that new rule.
If, on the other hand, a majority of the Court of Appeals should decide that it was unwilling to hold the rule in question arbitrary and capricious
merely on the basis of § 10 (e) of the Administrative Procedure Act, Vermont Yankee would not necessarily be required to have its license
reevaluated. So far as petitioner Vermont Yankee is concerned, there is certainly a case or controversy in this Court with respect to whether it
must, by virtue of the Court of Appeals’ decision, submit its license to the Commission for reevaluation and possible revocation under a new rule.
It is true that we do not finally determine here the validity of the rule upon which the validity of Vermont Yankee’s license in turn depends.
Neither should anything we say today be taken as a limitation on the Court of Appeals’ discretion to take due account, if appropriate, of any
additions made to the record by the Commission or to consolidate this appeal with the appeal from the interim rulemaking proceeding which is
already pending. But the fact that the question of the validity of the first rule remains open upon remand makes the controversy no less “live.”
As we read the opinion of the Court of Appeals, its view that reviewing courts may in the absence of special circumstances justifying such a
course of action impose additional procedural requirements on agency action raises questions of such significance in this area of the law as to
warrant our granting certiorari and deciding the case. Since the vast majority of challenges to administrative agency action are brought to the
Court of Appeals for the District of Columbia Circuit, the decision of that court in this case will serve as precedent for many more proceedings
for judicial review of agency actions than would the decision of another Court of Appeals. Finally, this decision will continue to play a major role
in the instant litigation regardless of the Commission’s decision to press ahead with further rulemaking proceedings.
As we note in n. 15, infra, not only is the NRDC relying on the decision of the Court of Appeals as a device to force the agency to provide more
procedures, but it is also challenging the interim rules promulgated by the agency in the Court of Appeals, alleging again the inadequacy of the
procedures and citing the opinion of the Court of Appeals as binding precedent to that effect.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Vermont Yankee will produce annually well over 100 employed in the proceedings. Brief for Petitioner in No.
pounds of radioactive wastes, some of which will be 76-419, pp. 30-38. Respondents, on the other hand,
highly toxic. The Commission itself, in a pamphlet pub- labeling petitioner’s view of the decision a “straw man,”
lished by its [*539] information office, clearly recog- argue to this Court that the court merely held that the
nizes that these wastes “pose the most severe potential record was inadequate to enable the reviewing court to
health hazard . . . .” U.S. Atomic Energy Commission, determine whether the agency had fulfilled its statutory
Radioactive Wastes 12 (1965). Many of these substances obligation.
must be isolated for anywhere from 600 to hundreds of
thousands of years. It is hard to argue that these wastes Brief for Respondents in No. 76-419, pp. 28-30, 40. But
do not constitute “adverse environmental effects which we unfortunately have not found the parties’ characteri-
cannot be avoided should the proposal be implemented,” zation of the opinion to be entirely reliable; it appears
or that by operating nuclear power plants we are not here, as in Orloff v. Willoughby, 345 U.S. 83, 87 (1953),
making “irreversible and irretrievable commitments of that “in this Court the parties changed positions as nim-
resources.” 42 U. S. C. §§ 4332 (2)(C)(ii), (v). As the bly as if dancing a quadrille.” 15
Court of Appeals recognized, the environmental impact
of the radioactive wastes produced by a nuclear power After a thorough examination of the opinion itself, we
plant is analytically indistinguishable from the environ- conclude that while the matter is not entirely free from
mental effects of “the stack gases produced by a coal- doubt, the majority of the Court of Appeals struck down
burning power plant.” 178 U. S. App. D. C., at 341, 547 the rule because of the perceived inadequacies of the
F.2d, at 638. For these reasons we hold that the Com- procedures employed in the rulemaking proceedings. The
mission acted well within its statutory authority when it court first determined the intervenors’ primary argument
considered the back end of the fuel cycle in individual to be “that the decision to preclude ‘discovery or cross-
licensing proceedings. examination’ denied them a meaningful opportunity to
participate in the proceedings as guaranteed by due proc-
We next turn to the invalidation of the fuel cycle rule. ess.” 178 U. S. App. D. C., at 346, 547 F.2d, at 643. The
But before determining whether the Court of Appeals court then went on to frame the issue for decision thus:
reached a permissible result, we must determine exactly
what result it did reach, and in this case that is no mean “Thus, we are called upon to decide whether the proce-
feat. Vermont Yankee argues that the court invalidated dures provided by the agency were sufficient to venti-
the rule because of the inadequacy of the procedures late the issues.” Ibid., 547 F.2d, at 643.
15
Vermont Yankee’s interpretation has been consistent throughout the litigation. That cannot be said of the other parties, however. The Govern-
ment, Janus-like, initially took both positions. While the petition for certiorari was pending, a brief was filed on behalf of the United States and
the Commission, with the former indicating that it believed the court had unanimously held the record to be inadequate, while the latter took
Vermont Yankee’s view of the matter. See Brief for Federal Respondents 5-9 (filed Jan. 10, 1977). When announcing its intention to undertake
licensing of reactors pending the promulgation of an “interim” fuel cycle rule, however, the Commission said:
“[The] court found that the rule was inadequately supported by the record insofar as it treated two particular aspects of the fuel cycle — the
impacts from reprocessing of spent fuel and the impacts from radioactive waste management.” 41 Fed. Reg. 45850 (1976).
And even more recently, in opening another rulemaking proceeding to replace the rule overturned by the Court of Appeals, the Commission
stated:
“The original procedures proved adequate for the development and illumination of a wide range of fuel cycle impact issues . . . .
“. . . The court here indicated that the procedures previously employed could suffice, and indeed did for other issues.
....
“Accordingly, notice is hereby given that the rules for the conduct of the reopened hearing and the authorities and responsibilities of the Hearing
Board will be the same as originally applied in this matter (38 Fed. Reg. 49, January 3, 1973) except that specific provision is hereby made for the
Hearing Board to entertain suggestions from participants as to questions which the Board should ask of witnesses for other participants.” 42 Fed.
Reg. 26988-26989 (1977).
Respondent NRDC likewise happily switches sides depending on the forum. As indicated above, it argues here that the Court of Appeals held
only that the record was inadequate. Almost immediately after the Court of Appeals rendered its decision, however, NRDC filed a petition for
rulemaking with the Commission which listed over 13 pages of procedural suggestions it thought “necessary to comply with the Court’s order
and with the mandate of [NEPA].” NRDC, Petition for Rulemaking, NRC Docket No. RM-50-3 (Aug. 10, 1976). These proposals include cross-
examination, discovery, and subpoena power. Id., Attachment, Rules for Conduct of Hearing on Environmental Effects of the Uranium Fuel
Cycle, paras. 5 (a), 9 (b), 11. NRDC likewise challenged the interim fuel cycle rule and suggested to the Court of Appeals that it hold the case
pending our decision in this case because the interim rules were “defective due to the inadequacy of the procedures used in developing the rule .
. . .” Motion to Hold Petition for Review in Abeyance 1, in NRDC v. NRC, No. 77-1448 (DC Cir., petition for review filed May 13, 1977; motion
filed July 5, 1977). NRDC has likewise challenged the procedures being used in the final rulemaking proceeding as being “no more than a re-run
of hearing procedures which were found inadequate [by the Court of Appeals].” x NRDC Petition for Reconsideration of the Ruling Reopening
the Hearings on the Environmental Effects of the Uranium Fuel Cycle 10, NRC Docket No. RM-50-3 (June 6, 1977).
158
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
The court conceded that absent extraordinary circum- R. Co., 410 U.S., at 242, 245, quoting from Bi-Metallic
stances it is improper for a reviewing court to prescribe Investment Co. v. State Board of Equalization, 239 U.S.
the procedural format an agency must follow, but it like- 441, 446 (1915). It might also be true, although we do
wise clearly thought it entirely appropriate to “scruti- not think the issue is presented in this case and accord-
nize the record as a whole to insure that genuine oppor- ingly do not decide it, that a totally unjustified departure
tunities to participate in a meaningful way were provided. from well-settled agency procedures of long standing
. . .” Id., at 347, 547 F.2d, at 644. The court also refrained might require judicial correction.17
from actually ordering the agency to follow any specific
procedures, id., at 356-357, 547 F.2d, at 653-654, but But this much is absolutely clear. Absent constitutional
there is little doubt in our minds that the ineluctable constraints or extremely compelling circumstances the
mandate of the court’s decision is that the procedures “administrative agencies ‘should be free to fashion their
afforded during the hearings were inadequate. This con- own rules of procedure and to pursue methods of inquiry
clusion is particularly buttressed by the fact that after capable of permitting them to discharge their multitudi-
the court examined the record, particularly the testimony nous duties.’” FCC v. Schreiber, 381 U.S., at 290, quot-
of Dr. Pittman, and declared it insufficient, the court pro- ing from FCC v. Pottsville Broadcasting Co., 309 U.S.,
ceeded to discuss at some length the necessity for fur- at 143. Indeed, our cases could hardly be more explicit
ther procedural devices or a more “sensitive” applica- in this regard. The Court has, as we noted in FCC v.
tion of those devices employed during the proceedings. Schreiber, supra, at 290, and18, upheld this principle in a
Ibid. The exploration of the record and the statement re- variety of applications, n18 including that case where the
garding its insufficiency might initially lead one to con- District Court, instead of inquiring into the validity of the
clude that the court was only examining the sufficiency Federal Communications Commission’s exercise of its
of the evidence, but the remaining portions of the opin- rulemaking authority, devised procedures to be followed
ion dispel any doubt that this was certainly not the sole by the agency on the basis of its conception of how the
or even the principal basis of the decision. Accordingly, public and private interest involved could best be served.
we feel compelled to address the opinion on its own Examining § 4 (j) of the Communications Act of 1934,
terms, and we conclude that it was wrong. In prior opin- the Court unanimously held that the Court of Appeals erred
ions we have intimated that even in a rule-making pro- in upholding that action. And the basic reason for this
ceeding when an agency is making a “‘quasi-judicial’” decision was the Court of Appeals’ serious departure from
determination by which a very small number of persons the very basic tenet of administrative law that agencies
are “‘exceptionally affected, in each case upon individual should be free to fashion their own rules of procedure.
grounds,’”in some circumstances additional procedures
may be required in order to afford the aggrieved indi- We have continually repeated this theme through the
viduals due process.16 United States v. Florida East Coast years, most recently in FPC v. Transcontinental Gas Pipe
16
Respondent NRDC does not now argue that additional procedural devices were required under the Constitution. Since this was clearly a
rulemaking proceeding in its purest form, we see nothing to support such a view. See United States v. Florida East Coast R. Co., 410 U.S. 224,
244-245 (1973); Bowles v. Willingham, 321 U.S. 503 (1944); Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915).
17
NRDC argues that the agency has in the past provided more than the minimum procedures specified in @ 4 of the APA and therefore
something more is required here, since “[agencies] are not free to alter their procedures on a whim, grossly constricting parties’ procedural rights
when it deems them an impediment or embarrassment to implementing its own views.” Brief for Respondents in No. 76-419, p. 46. In support
NRDC first argues that the Commission has considered other equally generic issues in adjudicatory proceedings. But NRDC conceded in the
court below that the agency could promulgate rules regarding the fuel cycle in rulemaking proceedings. 178 U. S. App. D. C., at 346, 547 F.2d,
at 643. Moreover, even here it concedes “that the Commission has in the past chosen to consider both environmental and safety issues that would
ordinarily be addressed in adjudicatory licensing proceedings through ‘generic’ rulemaking, a practice with which the lower court did not take
issue.” Brief for Respondents in No. 76-419, p. 48. It now contends, however, that the Commission provided more procedural safeguards in those
rulemaking proceedings than in the proceeding presently under review. In support it cites three previous proceedings where cross-examination
was supposedly provided. Id., at 49 n. 69.
Pretermitting both the fact that the Court of Appeals in no way relied upon this argument in its decision and the question of whether courts can
impose additional procedures even when an agency substantially departs from past practice, we find NRDC’s argument without merit. In the first
place, three proceedings out of the many held by NRC and its predecessor hardly establish the type of longstanding and well-established practice
deviation from which might justify judicial intervention. It appears, moreover, that in fact the hearings cited by NRDC are not only not part of a
longstanding practice but are themselves aberrational. Since 1970 the Commission has conducted a large number of rulemaking proceedings,
some of which have involved matters of substantial importance, and almost none of which have involved cross-examination. See, e. g., Quality
Assurance Criteria for Nuclear Power Plants, 35 Fed. Reg. 10499 (1970); General Design Criteria for Nuclear Power Plants, 36 Fed. Reg. 3255
(1971); Pre-Construction Permit Activities, 39 Fed. Reg. 14506 (1974); Environmental Protection — Licensing and Regulatory Policy and
Procedures. Id., at 26279.
18
See, e. g., CAB v. Hermann, 353 U.S. 322 (1957); Oklahoma Press Pub. Co.v. Walling, 327 U.S. 186 (1946); Wallace Corp. v. NLRB, 323
U.S. 248 (1944); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Utah Fuel Co. v.National Bituminous Coal Comm’n, 306 U.S. 56
(1939); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294 (1933).
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Line Corp., 423 U.S. 326 (1976), decided just two Terms . It would seem to require no argument to demonstrate
ago. In that case, in determining the proper scope of ju- that the administrative agencies, exercising but a fraction
dicial review of agency action under the Natural Gas Act, of the judicial power may likewise operate under uniform
we held that while a court may have occasion to remand rules of practice and procedure and that they may be re-
an agency decision because of the inadequacy of the quired to remain within the terms of the law as to the exer-
record, the agency should normally be allowed to “exer- cise of both quasi-legislative and quasi-judicial power.’
cise its administrative discretion in deciding how, in light
of internal organization considerations, it may best pro- . . . . “The bill is an outline of minimum essential rights
ceed to develop the needed evidence and how its prior and procedures. . . It affords private parties a means of
decision should be modified in light of such evidence as knowing what their rights are and how they may protect
develops.” Id., at 333. We went on to emphasize: them . . . . . . . .
“At least in the absence of substantial justification for “. . . [The bill contains] the essentials of the different
doing otherwise, a reviewing court may not, after deter- forms of administrative proceedings . . . .” H. R. Rep.
mining that additional evidence is requisite for adequate No. 1980, 79th Cong., 2d Sess., 9, 16-17 (1946).
review, proceed by dictating to the agency the methods,
procedures, and time dimension of the needed inquiry And the Attorney General’s Manual on the Administra-
and ordering the results to be reported to the court with- tive Procedure Act 31, 35 (1947), a contemporaneous
out opportunity for further consideration on the basis of interpretation previously given some deference by this
the new evidence by the agency. Such a procedure clearly Court because of the role played by the Department of
runs the risk of ‘]propelling] the court into the domain Justice in drafting the legislation,19 further confirms that
which Congress has set aside exclusively for the admin- view. In short, all of this leaves little doubt that Con-
istrative agency.’ SEC v. Chenery Corp., 332 U.S. 194, gress intended that the discretion of the agencies and not
196 (1947).” Ibid. Respondent NRDC argues that § 4 of that of the courts be exercised in determining when ex-
the Administrative Procedure Act, 5 U. S. C. § 553 (1976 tra procedural devices should be employed.
ed), merely establishes lower procedural bounds and that
a court may routinely require more than the minimum There are compelling reasons for construing § 4 in this
when an agency’s proposed rule addresses complex or manner. In the first place, if courts continually review
technical factual issues or “Issues of Great Public Im- agency proceedings to determine whether the agency em-
port.” Brief for Respondents in No. 76-419, p. 49. We ployed procedures which were, in the court’s opinion,
have, however, previously shown that our decisions re- perfectly tailored to reach what the court perceives to be
ject this view. Supra, at 542 to this page. We also think the “best” or “correct” result, judicial review would be
the legislative history, even the part which it cites, does totally unpredictable. And the agencies, operating under
not bear out its contention. The Senate Report explains this vague injunction to employ [*547] the “best” pro-
what eventually became § 4 thus: cedures and facing the threat of reversal if they did not,
would undoubtedly adopt full adjudicatory procedures
“This subsection states . . . the minimum requirements in every instance. Not only would this totally disrupt the
of public rule making procedure short of statutory hear- statutory scheme, through which Congress enacted “a
ing. Under it agencies might in addition confer with in- formula upon which opposing social and political forces
dustry advisory committees, consult organizations, hold have come to rest,” Wong Yang Sung v. McGrath, 339
informal ‘hearings,’ and the like. Considerations of prac- U.S., at 40, but all the inherent advantages of informal
ticality, necessity, and public interest . . . will naturally rulemaking would be totally lost.20
govern the agency’s determination of the extent to which
public proceedings should go. Matters of great import, Secondly, it is obvious that the court in these cases re-
or those where the public submission of facts will be viewed the agency’s choice of procedures on the basis
either useful to the agency or a protection to the public, of the record actually produced at the hearing, 178 U. S.
should naturally be accorded more elaborate public pro- App. D. C., at 347, 547 F.2d, at 644, and not on the basis
cedures.” S. Rep. No. 752, 79th Cong., 1st Sess., 14-15 of the information available to the agency when it made
(1945). the decision to structure the proceedings in a certain way.
This sort of Monday morning quarterbacking not only
The House Report is in complete accord: encourages but almost compels the agency to conduct
all rulemaking proceedings with the full panoply of pro-
“‘[Uniformity] has been found possible and desirable for cedural devices normally associated only with adjudica-
all classes of both equity and law actions in the courts . . . tory hearings.
19
See Power Reactor Co. v. Electricians, 367 U.S. 396, 408 (1961); United States v. Zucca, 351 U.S. 91, 96 (1956).
20
See Wright, The Courts and the Rulemaking Process: The Limits of Judicial Review, 59 Cornell L. Rev. 375, 387-388 (1974).
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VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
Finally, and perhaps most importantly, this sort of re- There remains, of course, the question of whether the
view fundamentally misconceives the nature of the stand- challenged rule finds sufficient justification in the ad-
ard for judicial review of an agency rule. The court be- ministrative proceedings that it should be upheld by the
low uncritically assumed that additional procedures will reviewing court. Judge Tamm, concurring in the result
automatically result in a more adequate record because reached by the majority of the Court of Appeals, thought
it will give interested parties more of an opportunity to that it did not. There are also intimations in the majority
participate in and contribute to the proceedings. But in- opinion which suggest that the judges who joined it like-
formal rulemaking need not be based solely on the tran- wise may have thought the administrative proceedings
script of a hearing held before an agency. Indeed, the an insufficient basis upon which to predicate the rule in
agency need not even hold a formal hearing. See 5 U. S. question. We accordingly remand so that the Court of
C. § 553 (c) (1976 ed.). Thus, the adequacy of the Appeals may review the rule as the Administrative Pro-
“record” in this type of proceeding is not correlated di- cedure Act provides. We have made it abundantly clear
rectly to the type of procedural devices employed, but before that when there is a contemporaneous explana-
rather turns on whether the agency has followed the statu- tion of the agency decision, the validity of that action
tory mandate of the Administrative Procedure Act or other must “stand or fall on the propriety of that finding, judged,
relevant statutes. If the agency is compelled to support of course, by the appropriate standard of review. If that
the rule which it ultimately adopts with the type of record finding is not sustainable on the administrative record
produced only after a full adjudicatory hearing, it sim- made, then the Comptroller’s decision must be vacated
ply will have no choice but to conducta full adjudicatory and the matter remanded to him for further considera-
hearing prior to promulgating every rule. In sum, this tion.” Camp v. Pitts, 411 U.S. 138, 143 (1973). See also
sort of unwarranted judicial examination of perceived SEC v. Chenery Corp., 318 U.S. 80 (1943). The court
procedural shortcomings of a rulemaking proceeding can should engage in this kind of review and not stray be-
do nothing but seriously interfere with that process pre- yond the judicial province to explore the procedural for-
scribed by Congress. Respondent NRDC also argues that mat or to impose upon the agency its own notion of which
the fact that the Commission’s inquiry was undertaken procedures are “best” or most likely to further some
in the context of NEPA somehow permits a court to re- vague, undefined public good. 21
quire procedures beyond those specified in § 4 of the
APA when investigating factual issues through We now turn to the Court of Appeals’ holding “that re-
rulemaking. The Court of Appeals was apparently also jection of energy conservation on the basis of the ‘thresh-
of this view, indicating that agencies may be required to old test’ was capricious and arbitrary,” 178 U. S. App. D.
“develop new procedures to accomplish the innovative C., at 332, 547 F.2d, at 629, and again conclude the court
task of implementing NEPA through rulemaking.” 178 was wrong. The Court of Appeals ruled that the Com-
U. S. App. D. C., at 356, 547 F.2d, at 653. But we search mission’s “threshold test” for the presentation of energy
in vain for something in NEPA which would mandate conservation contentions was inconsistent with NEPA’s
such a result. We have before observed that “NEPA does basic mandate to the Commission. Id., at 330, 547 F.2d,
not repeal by implication any other statute.” Aberdeen & at 627. The Commission, the court reasoned, is some-
Rockfish R. Co. v. SCRAP, 422 U.S. 289, 319 (1975). thing more than an umpire who sits back and resolves
See also United States v. SCRAP, 412 U.S. 669, 694 adversary contentions at the hearing stage. Ibid., 547 F.2d,
(1973). In fact, just two Terms ago, we emphasized that at 627. And when an intervenor’s comments “bring ‘suf-
the only procedural requirements imposed by NEPA are ficient attention to the issue to stimulate the Commis-
those stated in the plain language of the Act. Kleppe v. sion’s consideration of it,’” the Commission must “un-
Sierra Club, 427 U.S. 390, 405-406 (1976). Thus, it is dertake its own preliminary investigation of the proffered
clear NEPA cannot serve as the basis for a substantial alternative sufficient to reach a rational judgment whether
revision of the carefully constructed procedural specifi- it is worthy of detailed consideration in the EIS. Moreo-
cations of the APA. In short, nothing in the APA, NEPA, ver, the Commission must explain the basis for each con-
the circumstances of this case, the nature of the issues clusion that further consideration of a suggested alterna-
being considered, past agency practice, or the statutory tive is unwarranted.” Id., at 331, 547 F.2d, at 628, quot-
mandate under which the Commission operates permit- ing from Indiana & Michigan Electric Co. v. FPC, 163
ted the court to review and overturn the rulemaking pro- U. S. App. D. C. 334, 337, 502 F.2d 336, 339 (1974),
ceeding on the basis of the procedural devices employed cert. denied, 420 U.S. 946 (1975).
(or not employed) by the Commission so long as the
Commission employed at least the statutory minima, a While the court’s rationale is not entirely unappealing as
matter about which there is no doubt in this case. an abstract proposition, as applied to this case we think
21
Of course, the court must determine whether the agency complied with the procedures mandated by the relevant statutes. Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 417 (1971). But, as we indicated above, there is little doubt that the agency was in full compliance with all
the applicable requirements of the Administrative Procedure Act.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
it basically misconceives not only the scope of the agen- “forcefully pointed out by Saginaw in its comments on
cy’s statutory responsibility, but also the nature of the the draft EIS.” 178 U. S. App. D. C., at 328, 547 F.2d, at
administrative process, the thrust of the agency’s deci- 625. Again, as the Commission pointed out, “the phrase
sion, and the type of issues the intervenors were trying ‘energy conservation’ has a deceptively simple ring in
to raise. this context. Taken literally, the phrase suggests a virtu-
ally limitless range of possible actions and developments
There is little doubt that under the Atomic Energy Act of that might, in one way or another, ultimately reduce pro-
1954, state public utility commissions or similar bodies jected demands for electricity from a particular proposed
are empowered to make the initial decision regarding the plant.” App. 331. Moreover, as a practical matter, it is
need for power. 42 U. S. C. § 2021 (k). The Commis- hard to dispute the observation that it is largely the events
sion’s prime area of concern in the licensing context, on of recent years that have emphasized not only the need
the other hand, is national security, public health, and but also a large variety of alternatives for energy conser-
safety. §§ 2132, 2133, 2201. And it is clear that the need, vation. Prior to the drastic oil shortages incurred by the
as that term is conventionally used, for the power was United States in 1973, there was little serious thought in
thoroughly explored in the hearings. Even the Federal most Government circles of energy conservation alter-
Power Commission, which regulates sales in interstate natives. Indeed, the Council on Environmental Quality
commerce, [***52] 16 U. S. C. § 824 et seq. (1976 did not promulgate regulations which even remotely sug-
ed.), agreed with Consumers Power’s analysis of pro- gested the need to consider energy conservation in im-
jected need. App. 207. NEPA, of course, has altered pact statements until August 1, 1973. See 40 CFR §
slightly the statutory balance, requiring “a detailed state- 1500.8 (a) (4) (1977); 38 Fed. Reg. 20554 (1973). And
ment by the responsible official on . . . alternatives to the even then the guidelines were not made applicable to
proposed action.” 42 U. S. C. § 4332 (C). But, as should draft and final statements filed with the Council before
be obvious even upon a moment’s reflection, the term January 28, 1974. Id., at 20557, 21265. The Federal
“alternatives” is not self-defining. To make an impact Power Commission likewise did not require considera-
statement something more than an exercise in frivolous tion of energy conservation in applications to build hy-
boilerplate the concept of alternatives must be bounded droelectric facilities until June 19, 1973. 18 CFR pt. 2,
by some notion of feasibility. As the Court of Appeals App. A., § 8.2 (1977); 38 Fed. Reg. 15946, 15949 (1973).
for the District of Columbia Circuit has itself recognized: And these regulations were not made retroactive either.
Id., at 15946. All this occurred over a year and a half
“There is reason for concluding that NEPA was not meant after the draft environmental statement for Midland had
to require detailed discussion of the environmental ef- been prepared, and over a year after the final environ-
fects of ‘alternatives’ put forward in comments when mental statement had been prepared and the hearings
these effects cannot be readily ascertained and the al- completed. We think these facts amply demonstrate that
ternatives are deemed only remote and speculative pos- the concept of “alternatives” is an evolving one, requir-
sibilities, in view of basic changes required in statutes ing the agency to [*553] explore more or fewer alterna-
and policies of other agencies — making them available, tives as they become better known and understood. This
if at all, only after protracted debate and litigation not was well understood by the Commission, which, unlike
meaningfully compatible with the time-frame of the the Court of Appeals, recognized that the Licensing
needs to which the underlying proposal is addressed.” Board’s decision had to be judged by the information
Natural Resources Defense Council v. Morton, 148 U. then available to it. And judged in that light we have
S. App. D. C. 5, 15-16, 458 F.2d 827, 837-838 (1972). little doubt the Board’s actions were well within the
proper bounds of its statutory authority. Not only did the
See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 record before the agency give every indication that the
1973), cert. denied, 416 U.S. 961 (1974). Common sense project was actually needed, but also there was nothing
also teaches us that the “detailed statement of alterna- before the Board to indicate to the contrary. We also think
tives” cannot be found wanting simply because the the court’s criticism of the Commission’s “threshold test”
agency failed to include every alternative device and displays a lack of understanding of the historical setting
thought conceivable by the mind of man. within which the agency action took place and of the
nature of the test itself. In the first place, while it is true
Time and resources are simply too limited to hold that that NEPA places upon an agency the obligation to con-
an impact statement fails because the agency failed to sider every significant aspect of the environmental im-
ferret out every possible alternative, regardless of how pact of a proposed action, it is still incumbent upon
uncommon or unknown that alternative may have been intervenors who wish to participate to structure their
at the time the project was approved. participation so that it is meaningful, so that it alerts the
agency to the intervenors’ position and contentions. This
With these principles in mind we now turn to the notion is especially true when the intervenors are requesting the
of “energy conservation,” an alternative the omission of agency to embark upon an exploration of uncharted ter-
which was thought by the Court of Appeals to have been ritory, as was the question of energy conservation in the
162
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
late 1960’s and early 1970’s. able to it as described at length above, is to deprive those
words of any meaning. As we have said in the past:
“[Comments] must be significant enough to step over a
threshold requirement of materiality before any lack of “Administrative consideration of evidence . . . always
agency response or consideration becomes of concern. creates a gap between the time the record is closed and
The comment cannot merely state that a particular mis- the time the administrative decision is promulgated [and,
take was made . . . ; it must show why the mistake was of we might add, the time the decision is judicially re-
possible significance in the results . . viewed]. . . . If upon the coming down of the order liti-
gants might demand rehearings as a matter of law be-
.” Portland Cement Assn. v. Ruckelshaus, 158 U. S. App. cause some new circumstance has arisen, some new trend
D. C. 308, 327, 486 F.2d 375, 394 (1973), cert. denied has been observed, or some new fact discovered, there
sub nom. Portland Cement Corp. v. Administrator, EPA, would be little hope that the administrative process could
417 U.S. 921 (1974). ever be consummated in an order that would not be sub-
ject to reopening.” ICC v. Jersey City, 322 U.S. 503, 514
Indeed, administrative proceedings should not be a game (1944).
or a forum to engage in unjustified obstructionism by
making [*554] cryptic and obscure reference to matters See also Northern Lines Merger Cases, 396 U.S. 491,
that “ought to be” considered and then, after failing to 521 (1970). We have also made it clear that the role of a
do more to bring the matter to the agency’s attention, court in reviewing the sufficiency of an agency’s consid-
seeking to have that agency determination vacated on eration of environmental factors is a limited one, limited
the ground that the agency failed to consider matters both by the time at which the decision was made and by
“forcefully presented.” In fact, here the agency continu- the statute mandating review.
ally invited further clarification of Saginaw’s contentions.
Even without such clarification it indicated a willing- “Neither the statute nor its legislative history contem-
ness to receive evidence on the matters. But not only did plates that a court should substitute its judgment for that
Saginaw decline to further focus its contentions, it virtu- of the agency as to the environmental consequences of
ally declined to participate, indicating that it had “no con- its actions.” Kleppe v. Sierra Club, 427 U.S., at 410 n.
ventional findings of fact to set forth” and that it had not 21.
“chosen to search the record and respond to this pro-
ceeding by submitting citations of matter which we be- We think the Court of Appeals has forgotten that injunc-
lieve were proved or disproved.” tion here and accordingly its judgment in this respect
must also be reversed. 22
We also think the court seriously mischaracterized the
Commission’s “threshold test” as placing “heavy sub- Finally, we turn to the Court of Appeals’ holding that
stantive burdens . . . on intervenors . . . .” 178 U. S. App. the Licensing Board should have returned the ACRS re-
D. C., at 330, and n. 11, 547 F.2d, at 627, and n. 11. On port to ACRS for further elaboration, understandable to
the contrary, the Commission explicitly stated: a layman, of the reference to other problems.
“We do not equate this burden with the civil litigation The Court of Appeals reasoned that since one function
concept of a prima facie case, an unduly heavy burden in of the report was “that all concerned may be apprised of
this setting. But the showing should be sufficient to re- the safety or possible hazard of the facilities,” the report
quire reasonable minds to inquire further.” App. 344 n. must be in terms understandable to a layman and replete
27. with cross-references to previous reports in which the
“other problems” are detailed. Not only that, but if the
We think this sort of agency procedure well within the report does not so elaborate, and the Licensing Board
agency’s discretion. fails to sua sponte return the report to ACRS for further
development, the entire agency action, made after ex-
In sum, to characterize the actions of the Commission as haustive studies, reviews, and 14 days of hearings, must
“arbitrary or capricious” in light of the facts then avail- be nullified. Again the Court of Appeals has unjustifi-
22
The court also indicated at the end of the opinion in Aeschliman that since “this matter requires remand and reopening of the issues of energy
conservation alternatives as well as recalculation of costs and benefits, we assume that the Commission will take into account the changed
circumstances regarding Dow’s [the principal customer for the plant’s steam] need for process steam, and the intended continued operation of
Dow’s fossil-fuel generating facilities.” 178 U. S. App. D. C., at 335, 547 F.2d, at 632. As we read the Court of Appeals opinion, however, this was
not an independent basis for vacating and remanding the Commission’s licensing decision. It also appears from the record that the Commission
has reconsidered the changed circumstances and refused to reopen the proceedings at least three times, see App. 346-347, 348-349, 350-351, and
possibly a fourth, see Brief for Nonfederal Respondents in No. 76-528, pp. 19-20, n. 8. We see no error in the Commission’s actions in this
respect.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
ably intruded into the administrative process. It is true ing is insubstantial at best is a gross understatement.
that Congress thought publication of the ACRS report Consumers Power first applied in 1969 for a construc-
served an important function. But the legislative history tion permit — not even an operating license, just a
shows that the function of publication was subsidiary to construction permit. The proposed plant underwent an
its main function, that of providing technical advice from incredibly extensive review. The reports filed and re-
a body of experts uniquely qualified to provide assist- viewed literally fill books. The proceedings took years,
ance. See 42 U. S. C. § 2039; S. Rep. No. 296, 85th and the actual hearings themselves over two weeks. To
Cong., 1st Sess., 24 (1957); Joint Committee on Atomic then nullify that effort seven years later because one re-
Energy, A Study of AEC Procedures and Organization port refers to other problems, which problems admit-
in the Licensing of Reactor Facilities, 85th Cong., 1st tedly have been discussed at length in other reports avail-
Sess., 32-34 (Comm. Print 1957). The basic information able to the public, borders on the Kafkaesque. Nuclear
to be conveyed to the public is not necessarily a full tech- energy may some day be a cheap, safe source of power
nical exposition of every facet of nuclear energy, but or it may not. But Congress has made a choice to at least
rather the ACRS’s position, and reasons therefor, with try nuclear energy, establishing a reasonable review proc-
respect to the safety of a proposed nuclear reactor. Ac- ess in which courts are to play only a limited role. The
cordingly, the ACRS cannot be faulted for not dealing fundamental policy questions appropriately resolved in
with every facet of nuclear energy in every report it is- Congress and in the state legislatures are not subject to
sues. reexamination in the federal courts under the guise of
judicial review of agency action. Time may prove wrong
Of equal significance is the fact that the ACRS was not the decision to develop nuclear energy, but it is Congress
obfuscating its findings. The reports to which it referred or the States within their appropriate agencies which must
were matters of public record, on file in the Commis- eventually make that judgment. In the meantime courts
sion’s [*557] public-documents room. Indeed, all ACRS should perform their appointed function. NEPA does set
reports are on file there. Furthermore, we are informed forth significant substantive goals for the Nation, but its
that shortly after the Licensing Board’s initial decision, mandate to the agencies is essentially procedural. See
ACRS prepared a list which identified its “generic safety 42 U. S. C. § 4332. See also Aberdeen & Rockfish R.
concerns.” In light of all this it is simply inconceivable Co. v. SCRAP, 422 U.S., at 319. It is to insure a fully
that a reviewing court should find it necessary or per- informed and well-considered decision, not necessarily
missible to order the Board to sua sponte return the re- a decision the judges of the Court of Appeals or of this
port to [***62] ACRS. Our view is confirmed by the Court would have reached had they been members of the
fact that the putative reason for the remand was that the decisionmaking unit of the agency. Administrative deci-
public did not understand the report, and yet not one sions should be set aside in this context, as in every other,
member of the supposedly uncomprehending public even only for substantial procedural or substantive reasons as
asked that the report be remanded. This surely is, as pe- mandated by statute, Consolo v. FMC, 383 U.S. 607, 620
titioner Consumers Power claims, “judicial intervention (1966), not simply because the court is unhappy with the
run riot.” Brief for Petitioner in No. 76-528, p. 37. result reached. And a single alleged oversight on a pe-
ripheral issue, urged by parties who never fully cooper-
We also think it worth noting that we find absolutely ated or indeed raised the issue below, must not be made
nothing in the relevant statutes to justify what the court the basis for overturning a decision properly made after
did here. The Commission very well might be able to an otherwise exhaustive proceeding.
remand a report for further clarification, but there is noth-
ing to support a court’s ordering the Commission to take Reversed and remanded.
that step or to support a court’s requiring the ACRS to
give a short explanation, understandable to a layman, of MR. JUSTICE BLACKMUN and MR. JUSTICE
each generic safety concern. All this leads us to make POWELL took no part in the consideration or decision
one further observation of some relevance to this case. of these cases.
To say that the Court of Appeals’ final reason for remand-
164
VERMONT Y ANKEE NUCLEAR POWER CORP V N ATURAL RESOURCES DEFENCE COUNCIL
Section 3
Choice of Forum
165
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
166
CHARAN L AL SAHU V U NION OF INDIA
AIR 1990 SUPREME COURT 1480
SABYASACHI MUKHERJI, C.J. K.N. SINGH,
S. RANGANATHAN A.M. AHMADI AND K.N. SAIKIA, J.J.
Writ Petns. Nos. 268 and 281 of 1989 and 164 and 1551 of 1986,
D/-22-12-1989
CHARAN LAL SAHU, PETITIONER V. UNION OF INDIA,
Respondent
AND
RAKESH SHROUTI, PETITIONER V. UNION OF INDIA AND
OTHERS, Respondent
AND
RAJKUMAR KESWANI, PETITIONER V. UNION OF INDIA
AND OTHERS, Respondents
AND
RASRIN SI AND OTHERS, PETITIONERS V. UNION OF INDIA
AND OTHERS, Respondents
(A) Bhopal Gas Disaster (Processing of Claims) Act (1985), Pre, Ss. 3, 4, 9, 10 -Validity - Victims of
gas leak - Claim for compensation - Representation - Taking over claims of victims by govt. - Not
illegal.
Gas leak disaster - Claim for compensation by victims - Taking over by State.
Maxims - Parens patriae.
Constitution of India, Arts. 14, 226.
Conceptually and from the jurisprudential point of view, bate. But there is no prohibition or inhibition, conceptu-
especially in the background of the preamble to the Con- ally or jurisprudentially for Indian state taking over the
stitution of India and the mandate of the Directive Prin- claims of the victims or for the State acting for the vic-
ciples, it was possible to authorise the Central Govern- tims as the Act has sought to provide.
ment to take over the claims of the victims of gas leak to
fight against the multinational Corporation in respect of The Act in question was passed in recognition of the right
the claims. Because of the situation the victims were of the sovereign to act as parens patriae. The Govern-
under disability in pursuing their claims in the circum- ment of India in order to effectively safeguard the rights
stances of the situation fully and properly. On its plain of the victims in the matter of the conduct of the case
terms the State has taken over the exclusive right to rep- was entitled to act as parens patriae, which position was
resent and act in place of every person who has made or reinforced by the statutory provisions, namely, the Act.
is entitled to make a claim for all purposes connected It has to be borne in mind that conceptually and
with such claim in the same manner and to the same ef- jurisprudentially, the doctrine of parens patriae is not lim-
fect as such person. Whether such provision is valid or ited to representation of some of the victims outside the
not in the background of the requirement of the Consti- territories of the country. It is true that the doctrine has
tution and the Code of Civil Procedure, is another de- been so utilised in America so far. Where citizens of a
167
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
country are victims of a tragedy because of the negli- by themselves to look after their own interests effectively
gence of any multi-national, a peculiar situation arises or purposefully. In that background, they are people who
which calls for suitable effective machinery to articulate needed the State’s protection and should come within
and effectuate the grievances and demands of the vic- the umbrella of State’s sovereignty to assert, establish
tims, for which the conventional adversary system would and maintain their rights against the wrongdoers in this
be totally inadequate. The State in discharge of its sov- mass disaster. In that perspective, it is jurisprudentially
ereign obligation must come forward. The Indian State possible to apply the principle of parens patriae doctrine
because of its constitutional commitment is obliged to to the victims. But quite apart from that, it has to be borne
take upon itself the claims of the victims and to protect in mind that in this case the State is acting on the basis
them in their hour of need. Parens patriae doctrine can of the Statute itself. For the authority of the Central Gov-
be invoked by sovereign state within India, even if it be ernment to sue for and on behalf of or instead in place of
contended that it has not so far been invoked inside In- the victims, no other theory, concept or any jurispruden-
dia in respect of claims for damages of victims suffered tial principle is required than the Act itself. The Act dis-
at the hands of the multinational. Therefore conceptu- places the victims by operation of S. 3 of the Act and
ally and jurisprudentially, there is no bar on the State to substitutes the Central Government in its place. The vic-
assume responsibilities analogous to parens patriae to tims have been divested of their rights to sue and such
discharge the State’s obligations under the Constitution. claims and such rights have been vested in the Central
What the Central Government has done in the instant Government. The victims have been divested because the
case is an expression of its sovereign power. This power victims were disabled. The disablement of the victims
is plenary and inherent in every sovereign state to do all vis-a-vis their adversaries in this matter is a self-evident
things which promote the health, peace, morals, educa- factor. If that is the position then, even if the strict appli-
tion and good order of the people and tend to increase cation of the ‘parens patriae’ doctrine is not in order, as a
for the wealth and prosperity of the State. Sovereignty is concept it is a guide. The jurisdiction of the State’s power
difficult to define. By the nature of things, the State sov- cannot be circumscribed by the limitations of the tradi-
ereignty in these matters cannot be limited. It has to be tional concept of parens patriae. Jurisprudentially, it could
adjusted to the conditions touching the common welfare be utilised to suit or alter or adapt itself in the changed
when covered by legislative enactments. This power is circumstances. In the situation in which the victims were,
to the public what the law of necessity is to the indi- the State had to assume the role of a parent protecting
vidual. It is comprehended in the maxim salus populi the rights of the victims who must come within the pro-
suprema lex - regard for public welfare is the highest tective umbrella of the State and the common sovereignty
law. It is not a rule, it is an evolution. this power has of the Indian people. The Act is an exercise of the sover-
always been as broad as public welfare and as strong as eign power of the State. It is an appropriate evolution of
the arm of the State, this can only be measured by the the expression of sovereignty in the situation that had
legislative will of the people, subject to the fundamental arisen. (Para 100)
rights and constitutional limitations. This is an emana-
tion of sovereignty subject to as aforesaid. Indeed, it is Factually the Central Government does not own any share
the obligation of the State to assume such responsibility in UCIL. These are the statutory independent organiza-
and protect its citizens. It has to be borne in mind, that tions, namely, Unit Trust of India and Life Insurance Cor-
conferment of power and the manner of its exercise are poration, who own 20 to 22% share in UCIL. The Gov-
two different matters. The power to compromise and to ernment has certain amount of say and control in LIC
conduct the proceedings are not uncanalised or arbitrary. and UTI. Hence, it cannot be said that there is any con-
These were clearly exercisable only in the ultimate in- flict of interest in the real sense of matter in respect of
terests of the victims. The possibility of abuse of a stat- the claims of Bhopal gas leak disaster between the Cen-
ute does not impart to it any element of invalidity. tral Government and the victims. Secondly, in a situa-
tion of this nature, the Central Government is the only
It is true that victims or their representatives are sui authority which can pursue and effectively represent the
generis and cannot as such due to age, mental capacity victims. There is no other organization or Unit which
or other reason not, legally incapable for suing or pursu- can effectively represent the victims. Perhaps, theoreti-
ing the remedies for their rights yet they are at a tremen- cally, it might have been possible to constitute another
dous disadvantage in the broader and comprehensive independent statutory body by the Government under its
sense of the term. These victims cannot be considered to control and supervision in whom the claim of the vic-
be any match to the multinational companies or the Gov- tims might have been vested and substituted and that
ernment with whom in the conditions that the victims or Body could have been entrusted with the task of agitat-
their representatives were after the disaster physically, ing or establishing the same claims in the same manner
mentally, financially, economically and also because of as the Central Government has done under the Act. But
the position of litigation would have to contend. In such the fact that that has not been done does not in any way
a situation of predicament the victims can legitimately affect the position.
be considered to be disabled. They were in no position
168
CHARAN L AL SAHU V U NION OF INDIA
Per Ranganathan, J. (for himself and A.M. Ahmadi, J. merely because in addition to the right to institute a suit
Concurring) - In the instant case there are more illiter- or other proceedings it also empowers the Government
ates than enlightened ones. There are very few of the to withdraw the proceedings or enter into compromise.
claimants, capable of finding the financial wherewithal
required for fighting the litigation. Very few of them are (B) Bhopal Gas Disaster (Processing of Claims) Act
capable of prosecuting such a litigation in this country (1985), Pre, Ss. 3, 4 - Gas leak disaster - Claim for com-
not to speak of the necessity to run to a foreign country. pensation - Interim compensation to victims by Govern-
The financial position of UCIL was negligible compared ment - Not provided - Obligation of granting interim re-
to the magnitude of the claim that could arise and, though lief by Government is, however, inherent and must be
eventually the battle has to be pitched on our own soil, the basis of properly construing the spirit of Act.
an initial as well as final recourse to legal proceedings in
the United States was very much on the cards, indeed Interpretation of Statutes - Constructive intuition.
inevitable. In this situation, the legislature was perfectly
justified in coming to the aid of the victims with this Per Sabyasachi Mukharji, C.J. (for himself and Saikia,
piece of legislation and in asking the Central Govern- J.) (K.N. Singh, J. agreeing with him) - It is true that
ment to shoulder the responsibility by substituting itself there is no actual expression used in the Act itself which
in place of the victims for all purposes connected with expressly postulates or indicates an obligation of grant-
the claims. Even if the Act had provided for a total sub- ing interim relief or maintenance by the Central Gov-
stitution of the Government of India in place of the vic- ernment until the full amount of the dues of the victims
tims and had completely precluded them from exercis- is realised from the Union Carbide after adjudication or
ing their rights in any manner, it could perhaps have still settlement and then deducting therefrom the interim re-
been contended that such deprivation was necessary in lief paid to the victims. Such an obligation is, however,
larger public interest. inherent and must be the basis of properly construing
the spirit of the Act. This is the true basis and will be in
Sections 3 and 4 thus combine together the interests of consonance with the spirit of the Act. It must be, to use
the weak, illiterate, helpless and poor victims as wells as the well-known phrase ‘the major inarticulate premise’
the interests of those who could have managed for them- upon which though not expressly stated, the Act proceeds.
selves, even without the help of this enactment. The com- It is on this promise or premise that the State would be
bination thus envisaged enables the Government to fight justified in taking upon itself the right and obligation to
the battle with the foreign adversary with the full aid proceed and prosecute the claim and deny access to the
and assistance of such of the victims or their legal advis- courts of law to the victims on their own. If it is only so
ers as are in a position to offer any such assistance. read, it can only be held to be constitutionally valid. It
Though S. 3 denies the claimants the benefit of being eo has to be borne in mind that the language of the Act does
nomine parties in such suits or proceedings, S. 4 pre- not militate against this construction but on the contrary,
serves to them substantially all that they can achieve by Ss. 9, 10 and the scheme of the Act suggest that the Act
proceeding on their own. In other words, while seeming contains such an obligation. If it is so read, then only
to deprive the claimants of their right to take legal action meat can be put into the skeleton of the Act making it
on their own, it has preserved those rights, to be exer- meaningful and purposeful. The Act must, therefore, be
cised indirectly. A conjoint reading of Ss. 3 and 4 would, so read. This approach to the interpretation of the Act
therefore, show that there has been no real total depriva- can legitimately be called the ‘constructive intuition’
tion of the right of the claimants to enforce their claim which is a permissible mode of viewing the Acts of Par-
for damages in appropriate proceedings before any ap- liament. The freedom to search for ‘the spirit of the Act’
propriate forum. There is only a restriction of this right or the quantity of the mischief at which it is aimed (both
which, in the circumstances, is totally reasonable and synonymous for the intention of the parliament) opens
justified. The validity of the Act is, therefore, not liable up the possibility of liberal interpretation, “that delicate
to be challenged on this ground. and important branch of judicial power, the concession
of which is dangerous, the denial ruinous”. Given this
It is common knowledge that any authority given to con- freedom it is a rare opportunity though never to be mis-
duct a litigation cannot be effective unless it is accom- used and challenge for the Judges to adopt and give mean-
panied by an authority to withdraw or settle the same if ing to the Act, articulate and inarticulate, and thus trans-
the circumstances call for it. The vagaries of a litigation late the intention of the Parliament and fulfill the object
of this magnitude and intricacy could not be fully antici- of the Act. After all, the Act was passed to give relief to
pated. There were possibilities that the litigation may the victims who, it was thought were unable to establish
have to be fought out to the bitter finish. There were pos- their own rights and fight for themselves. It is common
sibilities that the UCC might be willing to adequately knowledge that the victims were poor and impoverished.
compensate the victims either on their own or at the in- How could they survive the long ordeal of litigation and
sistence of the Governments concerned. The legislation, ultimate execution of the decree or the orders unless pro-
therefore, cannot be considered to be unreasonable visions be made for their sustenance and maintenance,
169
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
especially when they have been deprived of the right to away the victims right to proceed criminally against the
fight for these claims themselves. delinquent, be it UCC or UCIL or jointly or severally
the Government of India, Government of Madhya
Per Ranganthan, J. (for himself and A.M. Ahmadi, J.) Pradesh or the erstwhile Chief Minister of Madhya
the validity of the Act does not depend upon its explic- Pradesh, is on a wrong basis. Thee is no curtailment of
itly or implicitly providing for interim payments. In the any right with respect to any criminal liability. Criminal
first place,. it was, and perhaps still is, a moot question liability is not the subject-matter of the Act.
whether a plaintiff suing for damages in tort would be
entitled to advance or interim payments in anticipation The Act does not in any way except to the extent indi-
of a decree. That was, indeed, the main point on which cated in the relevant provisions of the Act circumscribe
the interim orders in this case were challenged before or abridge the extent of the victims so far as the liability
the Supreme Court and, in the context of the events that of the delinquents are concerned. Whatever are the rights
took place, remains undecided. May be there is a strong of the victims and whatever claims arise out of the gas
case for ordering interim payments in such a case but, in leak disaster for compensation, personal injury, loss of
the absence of full and detailed consideration, it cannot life and property, suffered or likely to be sustained or
be assumed that, left to themselves, the victims would expenses to be incurred or any other loss are covered by
have been entitled to a “normal and immediate” right to the Act and the Central Government by operation of S. 3
such payment. Secondly, even assuming such right ex- of the Act has been given the exclusive right to represent
ists, all that can be said is that the State, which put itself the victims in their place and stead. By the Act, the ex-
in the place of the victims, should have raised in the suit tent of liability is not in any way abridged and, there-
a demand for such interim compensation - which it did - fore, if in case of any industrial disaster like the Bhopal
and that it should distribute among the victims such in- Gas leak disaster, there is right in victims to recover dam-
terim compensation as it may receive from the defend- ages or compensation on the basis of absolute liability,
ants. To say that the Act would be bad if it does not pro- then the same is not in any manner abridged or curtailed
vide for payment of such compensation by the Govern-
ment irrespective of what may happen in the suit is to Per Ranganathan, J. (for himself and A.M. Ahmadi, J.
impose on the State an obligation higher than what flows concurring) - The Act talks only of the civil liability of,
from its being subrogated to the rights of the victims. and the proceedings against the UCC or UCIL or others
The fact that the Act and the scheme thereunder envis- for damages caused by the gas leak. It has nothing to say
age interim relief to the victims, the point is perhaps only about the criminal liability of any of the parties involved.
academic. Clearly, therefore, the part of the settlement comprising
a term requiring the withdrawal of the criminal prosecu-
(C) Constitution of India, Article 32 - Petition under - tions launched is outside the purview of the Act. The
matters regarding claim for compensation in Bhopal Gas validity of the Act cannot, therefore, be impugned on the
leak case - Order by Constitution Bench that matters ground that it permits - and should not have permitted -
would be listed before Constitution Bench for decision the withdrawal of criminal proceedings against the de-
“on the sole question whether the Bhopal Gas Disaster linquents.
(Processing of Claims) Act, 1985 is ultra vires” - Is a
judicial order passed by Constitution Bench and not an (E) Bhopal Gas Disaster (Processing of Claims) Act
administrative order.(para 87) (1985), Pre, Ss. 3,4 - Gas leak disaster - Claim for
compensation - Ss. 3 and 4 giving exclusive right to
(D) Bhopal Gas Disaster (Processing of Claims), Act act in place of persons who are entitled to make claim
(1985), Pre., S. 9 - Scope -Act does not in any way cir- - Cannot be said to be only an enabling provisions - It
cumscribe liability of Union Carbide Company, UCIL, does not give the right to victim to sue along with
or Government of India or Government of Madhya Central Government.
Pradesh.
The plea that Ss. 3 and 4 was only an enabling provision
The Act does not in any way circumscribe the liability for the Central Government and not depriving or disa-
of the UCC, UCIL, or even the Government of India or bling provisions for the victims would not be tenable. In
Government of Madhya Pradesh if they are jointly or order to make the provisions constitutionally valid, the
severally liable. This Act also does not deal with any concept of exclusiveness to the Central Government
question of criminal liability of any of the parties con- could not be eliminated. It does not give the right to vic-
cerned. On an appropriate reading of the relevant provi- tim to sue along with the Central Government
sions of the Act, it is apparent that the criminal liability
arising out of Bhopal Gas leak disaster is not the subject Per Ranganathan, J. (for himself and A.M. Ahmadi, J.
matter of this Act and cannot be said to have been in any Concurring) - The provisions of the Act, read by them-
way affected, abridged or modified by virtue of this Act. selves, guarantee a complete and full protection to the
Thus the plea that the Act was bad as it abridged or took rights of the claimants in every respect. Save only that
170
CHARAN L AL SAHU V U NION OF INDIA
they cannot file a suit themselves, their right to acquire tlement in USA in mass action, the strength for the for-
redress has not really been abridged by the provisions of eign multinationals, the nature of injuries and damages,
the Act. Ss. 3 and 4 of the Act properly read, completely the limited but significant right of participation of the
vindicate the objects and reasons which compelled Par- victims as contemplated by S. 4 of the Act, the Act can-
liament to enact this piece of legislation. Far from abridg- not be condemned as unreasonable.
ing the rights of the claimants in any manner, these pro-
visions are so worded as to enable the Government to Per Ranganathan, J. (for himself and A.M. Ahmadi, J.
prosecute the litigation with the maximum amount of Concurring) - The power to conduct a litigation, particu-
resources, efficiency and competence at its command as larly in a case of this type, must, to be effective, neces-
well as with all the assistance and help that can be ex- sarily carry with it a power to settle it at any stage. It is
tended to it by such of those litigants, and claimants as impossible to provide statutorily any detailed catalogue
are capable of playing more than a mere passive role in of the situations that would justify a settlement or the
the litigation. basis or terms on which a settlement can be arrived at.
The Act, moreover, cannot be said to have conferred any
(F) Bhopal Gas Disaster (Processing of Claims) Act unguided or arbitrary discretion to the Union in conduct-
(1985), Pre, Ss. 3,4 - Gas leak disaster - Claim for com- ing proceedings under the Act. Sufficient guidelines
pensation - Settlement - Procedure evolved for victims emerge from the Statement of Objects and Reasons of
under Act - Is just, fair and reasonable and not violative the Act which makes it clear that the aim and purpose of
of Art. 14. the Act is to secure speedy and effective redress to the
victims of the gas leak and that all steps taken in pursu-
Constitution of India, Art. 14. ance of the Act should be for the implementation of the
object. Whether this object has been achieved by a par-
The Act does provide a special procedure in respect of ticular settlement will be a different question but it is
the rights of the victims and to that extent the Central altogether impossible to say that the Act itself is bad for
Government takes upon itself the rights of the victims. the reason alleged.
In view of the enormity of the disaster the victims of the
Bhopal gas leak disaster, as they were placed against the (G) Bhopal Gas Disaster (Processing of Claims) Act
multi-national and a big Indian Corporation and in view (1985), Pre, Ss. 3,4 - Gas leak disaster - Claim for com-
of the presence of foreign contingency lawyers to whom pensation - Representation of Claims of victims by Cen-
the victims were exposed, the claimants and victims were tral Government - Principles of natural justice not vio-
exposed, the claimants and victims can legitimately be lated.
described as a class by themselves different and distinct,
sufficiently separate and identifiable to be entitled to Constitution of India, Art. 226.
special treatment for effective, speedy, equitable and best
advantageous settlement of their claims. There indubita- The concept that where there is a conflict of interest, the
bly is differentiation. But this differentiation is based on person having the conflict should not be entrusted with
a principle which has rational nexus with the aim intended the task of this nature, does not apply in the instant case.
to be achieved by this differentiation. The disaster being In the instant case, no question of violation of the princi-
unique in its character and in the recorded history of in- ple of natural justice arises, and there is no scope for the
dustrial disasters situated as the victims were against a application of the principle that no man should be a Judge
mighty multinational with the presence of foreign con- in his own cause. The Central Government was not judg-
tingency lawyers looming on the scene, it could be said ing any claim, but was fighting and advancing the claims
that there were sufficient grounds for such differentia- of the victims. In those circumstances, it cannot be said
tion and different treatment. In treating the victims of that there was any violation of the principles of natural
the gas leak disaster differently and providing them a justice and such entrustment to the Central Government
procedure, which was just, fair, reasonable and which of the right to ventilate for the victims was improper or
was not unwarranted or unauthorized by the Constitu- bad. The adjudication would be done by the courts, and
tion, Art. 14 is not breached. it cannot be said that by the therefore there is no scope of the violation of any princi-
procedure envisaged by the Act, the victims of the gas ple of natural justice.
leak have been deprived and denied their rights and prop-
erty to fight for compensation. It cannot be said that the The question whether there is scope for the Union of
procedure evolved under the Act for the victims is pecu- India being responsible or liable as a joint tort feasor is a
liar and disadvantageous and therefore violative of Art. difficult and different question. But even assuming that
14. it was possible that the Central Government might be
liable in a case of this nature, it was only proper that the
In view of the background, the plight of the impover- Central Government should be able and authorized to
ished, the urgency of the victims need, the presence of represent the victims. In such a situation, there will be
the foreign contingency lawyers, the procedure of set- no scope of the violation of the principles of natural jus-
171
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
tice. The doctrine of necessity would be applicable in a action.
situation of this nature. In the circumstances of the case,
the Government of India is only capable to represent the The purpose of the Act and the principles of natural jus-
victims as a party. The adjudication, however, of the tice lead to the interpretation of S. 4 of the Act that in
claims would be done by the Court. In those circum- case of a proposed or the time being in force, bind any
stances the challenge on the ground of the violation of person who is not named as party to the suit. In this case,
principles of natural justice would not be tenable. The indubitably the victims would be bound by the settle-
principle of de facto validity will not be applicable. By ment though not named in the suit. If that is so, it would
the plea of the doctrine of bona fide representation of be a representative suit in terms of and for the purpose
the interests of victims in all these proceedings would of R. 3-B of O. 23 of the Code. If the principles of this
not also be attracted. The doctrine of bona fide represen- rule are the principles of natural justice then the princi-
tation would not be quite relevant. ples behind it would be applicable; and also that S. 4
should be so construed in spite of the difficulties of the
(H) Constitution of India, Art. 226 - Natural justice - process of notice and other difficulties of making “in-
Power to give pre-decisional hearing not conferred by formed decision making process cumbersome”.
statutes - Administrative decisions after post decisional
hearing would not be bad. Per Ranganathan, J. (for himself and A.M. Ahmadi, J.
Concurring) - It is not possible to bring the suits brought
Administrative law - Post decisional hearing. under the Act within the categories of representative ac-
tion envisaged in the Code of Civil Procedure. The Act
Natural justice - Post decisional hearing. deals with a class of action which is sui generis and for
which a special formula has been found and encapsuled
Post decisional hearing - Effect. in S. 4. The Act divests the individual claimants of their
right to sue and vests it in the Union. In relation to suits
Audi alteram partem is a highly effective rule devised in India, the Union is the sole plaintiff, none of the oth-
by the Courts to ensure that a statutory authority arrives ers are envisaged as plaintiff or respondents. The vic-
at a just decision and it is calculated to act as a healthy tims of the tragedy were so numerous that they were never
check on the abuse or misuse of power. The rules of natu- defined at the stage of filing the plaint nor do they need
ral justice can operate only in areas not covered by any to be defined at the stage of a settlement. The litigation
law validly made. The general principle as distinguished is carried on by the State in its capacity, not exactly the
from an absolute rule of uniform application is that where same as but somewhat analogous to that of a “parens
a statute does not in terms exclude this rule of prior hear- patriae”. In the case of a litigation by a karta of a Hindu
ing but contemplates a post-decisional hearing amount- undivided family or by a guardian on behalf of a ward,
ing to a full review of the original order on merits then who is non sui juris, for example, the junior members of
such a statute would be construed as excluding the audi the family of the wards, are not to be consulted before
alteram partem rule at the pre-decisional stage. If the entering into a settlement. In such cases, the Court acts
statute conferring the power is silent with regard to the as guardian of such persons to scrutinise the settlement
giving of a pre-decisional hearing to the person affected and satisfy itself that it is in the best interest of all con-
the administrative decision after post-decisional hearing cerned. If it is later discovered that there has been any
was good. fraud or collusion, it may be open to the junior members
of the family or the wards to call the karta or guardian to
(I) Bhopal Gas Disaster (Processing of Claims) Act account but, barring such a contingency, the settlement
(1985), pre, S. 4 - Gas leak disaster - Claims for com- would be effective and binding. In the same way, the
pensation - Settlement - Opportunity of making repre- Union as “parens patriae” would have been a liberty to
sentation should be given to victims before Court comes enter into such settlement as it considered best on its
to any conclusion in respect of settlement. own and seek the Court’s approval therefor.
Constitution of India, Art. 226. The statute has provided that though the Union of India
will be the dominus litus in the suit, the interests of all
In a case of gas leak disaster, when the victims have been the victims and their claims should be safeguarded by
given some say by S. 4 of the Act, in order to make that giving them a voice in the proceedings to the extent in-
opportunity contemplated by S. 4 of the Act, meaningful dicated above. This provision of the statute is an adapta-
and effective, it should be so read that the victims have tion of the principle of O.I,R.8 and of O.23, r.3-B of the
to be given an opportunity of making their representa- Code of Civil Procedure in its application to the suits
tion before the Court comes to any conclusion in respect governed by it and, though the extent of participation
of any settlement. How that opportunity should be given allowed to the victims is somewhat differently enunci-
would depend upon the particular situation. Fair proce- ated in the legislation, substantially speaking, it does in-
dure should be followed in a representative mass tort corporate the principles of natural justice to the extent
172
CHARAN L AL SAHU V U NION OF INDIA
possible in the circumstances. The statute cannot, there- should be appealable to an appropriate judicial authority
fore, be faulted, on the ground that it denies the victims and the scheme should be modified accordingly. The basis
an opportunity to present their view or places them at of categorisation and the actual categorisation should be
any disadvantage in the matter of having an effective justiciable and judicially reviewable - the provisions in
voice in the matter of settling the suit by way of compro- the Act and the Scheme should be so read. The scheme
mise. is an integrated whole and it would not be proper to
amend it piecemeal. In respect of categorisation and
(K) Bhopal Gas Disaster (Processing of Claims) act claim, the authorities must act on principles of natural
(1985), Pre, S. 4 - Gas leak disaster - Compensation - justice and act quasi-judicially.
Settlement by Central Govt. - Notice to victims neces-
sary. (M) Bhopal Gas Disaster (Processing of Claims) Act
(1985), Pre, Ss.3,4 - Validity Gas leak disaster - Claim
Constitution of India, Art. 226 . for compensation by victims - Act is constitutionally
valid.
S. 4 means and entails that before entering into any set-
tlement by Central Govt. affecting the rights and claims Constitution of India, Arts. 226, 14.
of the victims some kind of notice or information should
be given to the victims; it is not enough to say that the Post decisional hearing - Claim for compensation.
victims of gas leak must keep vigil and watch the pro-
ceeding for compensation. One assumption under which The Act is constitutionally valid. It proceeds on the hy-
the Act is justified is that the victims were disabled to pothesis that until the claims of the victims are realised
defend themselves in an action of this type. If that is so, or obtained from the delinquents, namely, UCC and UCIL
then the Court cannot presume that the victims were a by settlement or by adjudication and until the proceed-
lot, capable and informed to be able to have compre- ings in respect thereof continue the Central Government
hended or contemplated the settlement. In the aforesaid must pay interim compensation or maintenance for the
view of the matter, notice to the victims was necessary victims. In entering upon the settlement in view of S. 4
before the Central Govt. representing their claim reaches of the Act, regard must be had to the views of the vic-
to settlement. tims and for the purpose of giving regard to these, ap-
propriate notices before arriving at any settlement, were
All the further particulars upon which the settlement had necessary. In some cases, however, post-decisional no-
been entered into need not be given in the notice. It is tice might be sufficient but in the facts and the circum-
not necessary that all other particulars for the basis of stances of this case, no useful purpose would be served
the proposed settlement should be disclosed in a suit of by giving a post-decisional hearing and having regard to
this nature before the final decision. Whatever data was the fact that there are no further additional data and facts
already there have been disclosed, that would have been available with the victims which can be profitably and
sufficient for the victims to be able to give their views, if meaningfully presented to controvert the basis of the
they want to. Disclosure of further particulars are not settlement and further having regard to the fact that the
warranted by the requirement of principles of natural victims had their say or on their behalf their views had
justice. Indeed, such disclosure in this case before final- been agitated in these proceedings and will have further
ity might jeopardize future action, if any, necessary so opportunity in the pending view proceedings.
consistent with justice of the case.
The Act was conceived on the noble promise of giving
(L) Bhopal Gas Disaster (Processing of Claims) Act relief and succour to the dumb, pale, meek and impover-
(1985), Pre. Ss. 3,4,6 - Gas leak disaster - Compensation ished victims of a tragic industrial gas leak disaster, a
- disbursement - Supreme Court directed to issue notifi- concomitant evil in this industrial age of technological
cation under S. 6 advancement and development. The act had kindled high
hopes in the hearts of the weak and worn, wary and for-
Constitution of India, Art. 226 lorn. The Act generated hope of humanity. The imple-
mentation of the Act must be with justice. Justice per-
For disbursement of the compensation contemplated haps has been done to the victims situated as they were,
under the Act, a notification is directed to be issued un- but it is also true that justice has not appeared to have
der S.6(3) authorising the Commissioner or other offic- been done. That is a great infirmity. That is partly due to
ers to exercise all or any of the powers which the Central the fact that procedure was not strictly followed and also
Government may exercise under S. 5 to enable the vic- partly because of the atmosphere that was created in the
tims to place before the Commissioner or Deputy Com- country, attempts were made to shake the confidence of
missioner any additional evidence that they would like the people in the judicial process and also to undermine
to adduce. Further it is directed that in the Scheme cat- the credibility of the Supreme Court. This was unfortu-
egorisation to be done by the Deputy Commissioner nate. This was perhaps due to misinformed public opin-
173
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
ion and also due to the fact that victims were not initially working of such industrial operations or failure to en-
taken into confidence in reaching the settlement. This is sure measures preventing such occurrence. The Govern-
a factor which emphasizes the need for adherence to the ment should also ensure that the parties must agree to
principles of natural justice. The credibility of judiciary abide to pay such damages out of the said damages by
is as important as the alleviation of the suffering of the procedure separately evolved for computation and pay-
victims, great as these were. It is hoped that these ment of damages without exposing the victims or suffer-
adjudications will restore that credibility. Principles of ers of the negligent act to the long and delayed proce-
natural justice are integrally embedded in our constitu- dure. Special procedure must be provided for and the
tional framework and their prestine glory and primacy industries must agree as a condition for the grant of li-
cannot and should not be allowed to be submerged by cence to abide by such procedure or to abide by statu-
the exigencies of particular situations or cases. The Su- tory arbitration. The basis for damages in case of leak-
preme Court must always assert primacy of adherence ages and accident should also be statutorily fixed taking
to the principles of natural justice in all adjudications. into consideration the nature of damages inflicted, the
But at the same time, these must be applied in a particu- consequences thereof and the ability and capacity of the
lar manner in particular cases having regard to the par- parties to pay. Such should also provide for deterrent for
ticular circumstances. It is, therefore, necessary to reit- punitive damages, the basis for which should be formu-
erate that the promises made to the victims and hopes lated by a proper expert committee or by the Govern-
raised in their hearts and minds can only be redeemed in ment. For this purpose, the Government should have the
some measure if attempts are made vigorously to dis- matter examined by such body as it considers necessary
tribute the amount realised to the victims in accordance and proper like the Law Commission or other competent
with the scheme as indicated above. That would be a bodies. This is vital for the future.
redemption to a certain extent. It will also be necessary
to reiterate that attempts should be made to formulate Per K.N. Singh, J. (Concurring): - In the context of our
the principles of law guiding the Government and the national dimensions of human rights, right to life, lib-
authorities to permit carrying on of trade dealing with erty, pollution free air and water is guaranteed by the
materials and things which have dangerous consequences Constitution under Arts. 21, 48-A and 51(g), it is the duty
within sufficient specific safe-guards especially in case of the State to take effective steps to protect the guaran-
of multi-national corporations trading in India. An aware- teed constitutional rights. These rights must be integrated
ness on these lines has dawned. Let action follow that and illumined by the evolving international dimensions
awareness. It is also necessary to reiterate that the law and stands, having regard to our sovereignty, as highlighted
relating to damages and payment of interim damages or by Clauses 9 and 13 of U.N. Code of Conduct on
compensation to the victims of this nature should be se- Transnational Corporations. The evolving standards of in-
riously and scientifically examined by the appropriate ternational obligations need to be respected, maintaining
agencies. dignity and sovereignty of our people, the State must take
effective steps to safeguard the constitutional rights of
(N) Constitution of India, Art. 32 - Industrial licence citizens by enacting laws. The laws so made may provide
- Grant of, to industries dealing with materials which for conditions for granting licence to Transnational Cor-
are of dangerous potentialities - Need for laying down porations, prescribing norms and standards for running
certain norms and standards to be followed by the industries on Indian soil ensuring the constitutional rights
Govt., stated. of our people relating to life, liberty, as well as safety to
environment and ecology to enable the people to lead a
The Bhopal Gas Leak disaster and its aftermath empha- healthy and clean life. A Transnational Corporation should
size the need for laying down certain norms and stands be made liable and subservient to laws of our country and
that the government to follow before granting permissions the liability should not be restricted to affiliate company
or licences for the running of industries dealing with only but the parent corporation should also be made li-
materials which are of dangerous potentialities. The Gov- able for any damage caused to the human beings or ecol-
ernment should, therefore, examine or have the problem ogy. The law must require transnational Corporation to
examined by an expert committee as to what should be agree to pay such damages as may be determined by the
the conditions on which future licences and/or permis- statutory agencies and forums constituted under it with-
sion for running industries on Indian soil would be out exposing the victims to long drawn litigation. Under
granted and for ensuring enforcement of those condi- the existing civil law, damages are determined by the Civil
tions, sufficient safety measures should be formulated Courts, after a long drawn litigation, which destroys the
and scheme of enforcement indicated. The Government very purpose of awarding damages. In order to meet the
should insist as a condition precedent to the grant of such situation to avoid delay and to ensure immediate relief to
licences or permissions, creation of a fund in anticipa- the victims it was suggested that the law made by the Par-
tion by the industries to be available for payment of dam- liament should provide for constitution of Tribunals regu-
ages out of the said fund in cases of leakages or damages lated by special procedure for determining compensation
in case of accident or disaster flowing from negligent to victims of industrial disaster or accident, appeal against
174
CHARAN L AL SAHU V U NION OF INDIA
which may lie to the Supreme Court on limited ground of contain appropriate provisions in regard to the follow-
questions of law only after depositing the amount deter- ing matters: (i) the payment of a fixed minimum com-
mined by the Tribunal. The law should also provide for pensation on a “no-fault liability” basis (as under the
interim relief to victims during the pendency of proceed- Motor Vehicles Act), pending final adjudication of the
ings. These steps would minimise the misery and agony claims by a prescribed forum; (ii) the creation of a spe-
of victims of hazardous enterprises. cial forum with specific power to grant interim relief in
appropriate cases; (iii) the evolution of a procedure to be
Industrial development in our country and the hazards followed by such forum which will be conducive to the
involved therein pose a mandatory need to constitute a expeditious determination of claims and avoid the high
statutory “Industrial Disaster Fund”, contributions to degree of formalism that attaches to proceedings in regu-
which may be made by the Government, the industries lar courts: and (iv) a provision requiring industries and
whether they are transnational corporations or domestic concerns engaged in hazardous activities to take out com-
undertakings, public or private. The extent of contribu- pulsory insurance against third party risks.
tion may be worked out having regard to the extent of
hazardous nature of the enterprise and other allied mat- (O) Bhopal Gas Disaster (Processing of Claims) Act
ters. The Fund should be permanent in nature, so that (1985), Pte, Ss. 3,4, - Gas leak disaster - Claim for
money is readily available for providing immediate ef- compensation - Representation by Government - Act
fective relief to the victims. This may avoid delay, as has is not invalid on ground that it has entrusted respon-
happened in the instant case in providing effective relief sibility not only of carrying on but also entering into
to the victims. The Government and the Parliament a settlement.
should therefore take immediate steps for enacting laws,
having regard to these suggestions, consistent with the Per Ranganathan, J. (for himself and A.M. Ahmadi, J.
international norms and guidelines as contained in the Concurring) In case of compensation for Bhopal Gas leak
United Nations Code of Conduct on Transnational Cor- disaster it cannot be alleged that the Union is itself a
porations. (Paras 138, 146) joint tort-feasor (sued as such by some of the victims)
with an interest (adverse to the victims) in keeping down
Per Ranganathan, J. (for himself and A.M. Ahamadi, J. the amount of compensation payable to the minimum so
Concurring). Before we gained independence, on account as to reduce its own liability as a joint tort-feasor. The
of our close association with Great Britain, we were gov- Union of India itself is one of the entities affected by the
erned of the common law principles. In the field of torts, gas leak and has a claim for compensation from the UCC
under the common law of England, no action could be quite independent of the other victims. From this point
laid by the dependants or heirs of a person whose death of view, it is in the same position as the other victims
was brought about by the tortious act of another on the and, in the litigation with the UCC, it has every interest
maxim actio personalis moritur cum perona, although a in securing the maximum amount of compensation pos-
person injured by a similar act could claim damages for sible for itself and the other victims. It is, therefore, the
the wrong done to him. In England this situation was best agency in the circumstances that could be looked
remedied by the passing of the Fatal Accidents Act, 1845, up to for fighting the UCC on its own as well as on be-
popularly known as Lord Camphell’s Act. Soon thereaf- half of the victims. The suggestion that the Union is a
ter the Indian Legislature enacted the Fatal Accidents joint tort-feasor has been stoutly resisted. But, even as-
Act, 1855. This act is fashioned on the lines of the Eng- suming that the Union has some liability in the matter, it
lish Act of 1846. Even though the English Act has un- cannot derive any benefit of advantage by entering into
dergone a substantial change, our law has remained static a low settlement with the UCC. The Act and Scheme
and seems a trifle archaic. The magnitude of the gas leak thereunder have provided for an objective and quasi-ju-
disaster in which hundred lost their lives and thousands dicial determination of the amount of damages payable
were maimed, not to speak of the damage to livestock, to the victims of the tragedy. There is no basis for the
flora and fauna, business and property, is an eye opener. fear that the officers of the Government may not be ob-
The nation must learn a lesson from this traumatic expe- jective and may try to cut down the amounts of compen-
rience and evolve safeguards at least for the future. The sation, so as not to exceed the amount received from the
time is ripe to take a fresh look at the out dated century UCC. It is common ground indeed, that the settlement
old legislation which is out of tune with modern con- with the UCC only puts an end to the claims against the
cepts. While it may be a matter for scientists and techni- UCC and UCIL and does not in any way affect the vic-
cians to find solutions to avoid such large scale disas- tims rights, if any, to proceed against the Union, the State
ters, the law must provide an effective and speedy rem- of Madhya Pradesh or the ministers and officers thereof,
edy to the victims of such torts. The Fatal Accidents Act, if so advised. I the Union and these officers are joint
on account of its limited and restrictive application, is tort-feasors, as alleged, the Union will not stand to gain
hardly suited to meet such a challenge. Therefore, the by allowing the claims against the UCC to be settled for
old antiquated Act should be drastically amended or fresh a low figure. On the contrary it will be interested in set-
legislation should be enacted which should, inter alia, tling the claims against the UCC as high a figure as pos-
175
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
sible so that its own liability as a joint tort-feasor (if made AIR 1980 SC 1762: (1980) 3 SCR 1159 52
out) can be correspondingly reduced. Therefore there is (1981) 4 SCC 505: 1981 UJ (SC) 434(I) 77
no vitiating element in the legislation insofar as it has AIR 1980 SC 1888: 1980 All LJ 943 76
entrusted the responsibility not only of carrying on but AIR 1979 SC 478: (1979) 2 SCR 476 52
also of entering into a settlement, it thought fit. AIR 1979 SC 1628: (1979) 3 SCR 1014 29
AIR 1978 SC 597: (1978) 2 SCR 621 29, 41, 109
(P) Bhopal Gas Disaster (Processing of Claims) Act AIR 1978 Madh Pra 209 53
(1985), Pre, Ss. 3,4 - gas leak disaster - Claim compen- AIR 1976 SC 1750: (1976)
sation - Claims processed and their aggregate is deter- 3 SCR 1005: 1976 Cri LJ 1373 77
mined - Post decisional hearing to victims in the circum- AIR 1975 SC 824: (1975) 2 SCR 491 78
stances, not necessary. AIR 1974 SC 555: (1974) 2 SCR 348:
1974 Lab IC 427 29
Per Ranganathan, J. (A.M. Ahamadi, J. agreeing with AIR 1974 SC 1126: (1974) 3 SCR 882 41
him). AIR 1966 SC 792: (1966) 2 SCR 937 76
AIR 1965 SC 1039: (1965) 375: 1965
Post decisional hearing - Claims for compensation - Proc- (2) Cri LJ 144 73
essed and determined - Hearing not necessary. 1964 AC 1129: (1964) 2 WLR 269: (1964) 1
All ER 367 Rookes v. Barnard 92
(Q) Bhopal Gas Disaster (Processing of Claims) Act AIR 1963 SC 1: (1963) SCR 22 54
(1985), Pre., Ss. 3,4 - Gas leak disaster - Claim for AIR 1963 SC 1116: 1963 Supp (2) SCR 724 54
compensation - Settlement by Central Govt. before AIR 1962 SC 316: (1962) 3 SCR 786: (1962) 1
Supreme Court - No interference. Cri LJ 364 63
AIR 1962 SC 933: 1962(2) SCR 989 74
Per Ranganathan, J. (A.M. Ahmedi, J. agreeing with him) AIR 1961 SC 112: (1961) 1 SCR 497:
- It would be more correct and proper not to disturb the 1961 (1) Cri LJ 173 77
orders in AIR 1990 SC 273 on the ground that the rules AIR 1961 SC 1731: (1962) 2 SCR 169 63
of natural justice have not been complied with, particu- 1960 AC 490: (1960) 2 WLR 148: (1960) 1 All
larly in view of the pendency of the review petition. ER 65 Belfast Corpn. v. O.D. Cars 63
AIR 1959 SC 149 52
Cases Referred: Chronological Paras AIR 1959 SC 951: (1959) 2 Supp SCR 583 35, 63
AIR 1958 SC 538: 1959 SCR 279 52
(1989) C.A. Nos. 9187-89 of 1988 and SLP (C) No. AIR 1957 Mad 563 35, 63
13080 of 1988 D/- 14-2-1989 14 (1957) 2 QB 55: (1957) 2 WLR 760: (1957) 2
(1989) Writ Petns. Nos. 268 of 1989
and 164 of 1986 D/- 3-3-1989 (SC) 32 All ER 155 Jones v. National Coal Board 130
AIR 1988 SC 1531: (1988) 2 SCC 602 52 55 AIR 1955 SC 191: (1955) 1 SCR 1045:
AIR 1987 SC 656: (1987) 1 SCR 870 52 1955 Cri LJ 374 52
AIR 1987 SC 1072: (1987) 1 SCR 870 52 AIR 1955 SC 425: (1955) 2 SCR 1 111
AIR 1987 SC 1086: (1987) AIR 1952 SC 196: 1952 SCR 597:
1 SCR 819 51, 74, 83, 86, 92, 134 1952 Cri LJ 966 29, 99
AIR 1987 SC 1156: (1987) 3 SCC 367 76 AIR 1952 All 275 66
AIR 1987 SC 1281: (1987) 2 SCC 469: AIR 1951 Cal 456 66
1981 Lab IC 961 52 AIR 1943 Cal 203 35. 63
AIR 1987 SC 2111: (1987) 3 SCC 593: 1987 AIR 1942 Cal 311 35, 63
All LJ 1434 76 AIR 1928 PC 261 111
AIR 1986 SC 180: 1985 Supp 2 SCR 51 39, 41 AIR 1925 Mad 1274 111
AIR 1985 SC 1416: 1985 Supp (2) AIR 1917 PC 71: ILR 40 Mad 793 111
SCR 131: 1985 Lab IC 1393 42, 110 (1970) 206 US 230: 51 L Ed 1038:
AIR 1984 SC 469: (1984) 2 SCR 795 52 27 S Ct 618 Georgia v. Tennessee Copper Co. 35
AIR 1984 SC 1572: (1984) 4 SCC 103 75 (1900) 27 Ind App 216: FLR I 25 Bom 337 (PC) 76
(1982) 3 SCC 182 77 (1868) 3 HL 330: 37 LJ Ex 161:
(1982) 458 US 592: 73 Law Ed 2d 885: 102 19 LT 220 Rylands v. Fletcher 91
SCt 3260 Alfred L. Snapp & Son v.
Puerto Rico 35, 63 SABYASACHI MUKHARJI, C.J.:- Is the Bhopal Gas
AIR 1981 SC 136: (1981) 1 SCR 746 42, 113 Leak Disaster (Processing of Claims) Act,. 1985 (here-
AIR 1981 SC 818: (1981) 2 SCR 533 42 inafter referred to as ‘the Act’) constitutionally valid?
AIR 1981 SC 1473: (1981) 3 SCR 474: That is the question.
1981 Cri LJ 876 76
176
CHARAN L AL SAHU V U NION OF INDIA
2. The Act was passed as a sequel to a grim tragedy. 8th April, 1985 by virtue of the Act the Union of India
On the night of 2nd December, 1984 occurred the most filed a complaint before the U.S. District Court, South-
tragic industrial disaster in recorded human history in ern District of New York. On 16th April, 1985 at the first
the city of Bhopal in the State of Madhya Pradesh in pre-trial conference in the consolidated action transferred
India. On that night there was massive escape of lethal and assigned to the U.S. District Court, Southern Dis-
gas from the MIC storage tank at Bhopal Plant of the trict, New York, Judge Keenan gave the following direc-
Union Carbide (I) Ltd, (hereinafter referred to as ‘UCIL’) tions:-
resulting in large scale death and untold disaster. A chemi-
cal plant owned and operated by UCIL was situated in i) that a three member Executive Committee be formed
the northern sector of the city of Bhopal. There were to frame and develop issues in the case and prepare
numerous hutments adjacent to it on its southern side, expeditiously for trial or settlement negotiations. The
which were occupied by impoverished squatters. UCIL Committee was to comprise of one lawyer selected
manufactured the pesticides Sevin and Temik, at the by the firm retained by the Union of India and two
Bhopal plant, at the request of, it is stated by Judge John other lawyers chosen by lawyers retained by the in-
F. Keenan of the United States District Court in his judge- dividual plaintiffs.
ment, and indubitably with the approval of the Govt. of
India. UCIL was incorporated in 1984 under the appro- ii) that as a matter of fundamental human decency, tem-
priate Indian law. 50.99% of its shareholdings were porary relief was necessary for the victims and should
owned by the Union Carbide Corporation (UCC), a New be furnished in a systematic and coordinated fash-
York Corporation, L.I.C. and the Unit Trust of India own ion without unnecessary delay regardless of the pos-
22% of the shares of U.C.I.L. a subsidiary of U.C.C. ture of the litigation then pending.
3. Methyl Isocyanate (MIC), a highly toxic gas, is an 7. On 24th September, 1985 in exercise of powers con-
ingredient in the production of both Sevin and Temik. ferred by Section 9 of the Act, the Govt. of India framed
On the night of the tragedy MIC leaked from the plant in the Bhopal Gas Leak Disaster (Registration and Process-
substantial quantities. The exact reasons for and circum- ing of Claims) Scheme, 1985 (hereinafter called the
stances of such leakage have not yet been ascertained or Scheme).
clearly established. The results of the disaster were hor-
rendous. Though no one is yet certain as to how many 8. On 12th May, 1986 an order was passed by Judge
actually died as the immediate and direct result of the Keenan allowing the application of UCC on Forum non
leakage, estimates attribute it to about 3000. Some suf- conveniens as indicated hereinafter. On 21st May 1986
fered injuries the effects of which are described as carci- there was a motion for fairness hearing on behalf of the
nogenic and ontogenic by Ms. Indira Jaisingh, learned private plaintiffs. On 26th June 1986 individual plain-
counsel; some suffered injuries serious and permanent tiffs filed appeal before the US Court of Appeal for the
and some mild and temporary. Livestock was killed, dam- second circuit challenging the order of Judge Keenan.
aged and infected. Businesses were interrupted. Envi- By an order dated 28th May, 1986 Judge Keenan de-
ronment was polluted and the ecology affected, flora and clined the motion for a fairness hearing. The request for
fauna disturbed. fairness hearing was rejected at the instance of Union of
India in view of the meagerness of the amount of pro-
4. On 7th December, 1984, Chairman of UCC Mr. War- posed settlement. On 10th July, 1986 UCC filed an ap-
ren Anderson came to Bhopal and was arrested. He was peal before the US Court of Appeal for the Second Cir-
later released on bail. Between December 1984 and Janu- cuit. It challenged Union of India being entitled to Ameri-
ary 1985 suits were filed by several American lawyers in can mode of discovery, but did not challenge the other
the courts in America on behalf of several victims. It has two conditions imposed by Judge Keenan, it is stated.
been stated that within a week after the disaster many On 28th July, 1986 the Union of India filed cross-appeal
American lawyers described by some as ‘ambulance before the US Court of Appeal praying that none of the
chasers’, whose fees were stated to be based on a per- conditions imposed by Judge Keenan should be disturbed.
centage of the contingency of obtaining damages or not, In this connection it would be pertinent to set out the
flew over to Bhopal and obtained Powers of Attorney to conditions incorporated in the order of Judge Keenan,
bring actions against UCC and UCIL. Some suits were dated 12th May, 1986 whereby he had dismissed the case
also filed before the District Court of Bhopal by indi- before him on the ground of forum non conveniens, as
vidual claimants against UCC (the American Company) mentioned before. The conditions were following:-
and the UCIL.
1. that UCC shall consent to the jurisdiction of the
5. On 29th March, 1985, the Act in question was courts of India and shall continue to waive defenses based
passed. The Act was passed to secure that the claims aris- o the statute of limitation,
ing out of or connected with the Bhopal gas leak disaster
were dealt with speedily, effectively and equitably. On 2. that UCC shall agree to satisfy any judgement ren-
177
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
dered by an Indian court against it and if applicable, up- ordered interim relief amounting to Rs. 350 crores. Be-
held on appeal, provided the judgement and affirmance ing aggrieved thereby the UCC filed a Civil Revision
“comport with minimal requirements of due process”, which was registered as Civil Revision Petition No. 26/
and 88 and the same was heard. On or about 4th February,
1988, the Chief Judicial Magistrate of Bhopal ordered
3. that UCC shall be subject to discovery under the notice for warrant on Union Carbide, Hong Kong for the
Federal Rules of Civil Procedure of the US after appro- criminal case filed by CBI against Union Carbide. The
priate demand by the plaintiffs. charge sheet there was under sections 304, 324, 326, 429
of the Indian Penal Code read with section 35 IPC and
9. On 5th September, 1986 the Union of India filed a the charge was against S/Shri Warren Anderson, Keshub
suit for damages in the District Court of Bhopal, being Mahindra, Vijay Gokhale, J. Mukund, Dr. R.B. Roy
regular suit No. 1113/ 86. It is this suit, inter alia, and Chowdhary, S.P. Chowdhary, K.V. Shetty, S.I. Qureshi
the orders passed therein which were settled by the or- and Union Carbide of U.S.A., Union Carbide of Hong
ders of this Court dated 14th & 15th February, 1989, Kong and Union Carbide having Calcutta address. It
which will be referred to later. On 17th November, 1986 charged the Union Carbide by saying that MIC gas was
upon the application of the Union of India, the District stored and it was further stated that MIC had to be stored
Court Bhopal, granted a temporary injunction restrain- and handled in stainless steel which was not done. The
ing the UCC from selling assets, paying dividends or charge sheet, inter alia, stated that a scientific Team
buying back debts. On 27th November, 1986 the UCC headed by Dr. Varadarajan had concluded that the fac-
gave an undertaking to preserve and maintain unencum- tors which had led to the toxic gas leakage causing its
bered assets to the extent of 3 billion US dollars. heavy toll existed in the unique properties of very high
reactivity, volatility and inhalation toxicity of MIC. It
10. On 30th November, 1986 the Distt. Court Bhopal was further stated in the charge sheet that the needless
lifted the injunction against the Carbide selling assets on storage of large quantities of the material in very large
the strength of the written undertaking by UCC to main- size containers for inordinately long periods as well as
tain unencumbered assets of 3 billion US dollars. On 16th insufficient caution in design, in choice of materials of
December, 1986 UCC filed a written statement contend- construction and in provision of measuring and alarm
ing that they were not liable on the ground that they had instruments, together with the inadequate controls on
nothing to do with the Indian Company; and that they systems of storage and on quality of stored materials as
were a different legal entity; and that they never exer- well as lack of necessary facilities for quick effective
cised any control and that they were not liable in the disposal of material exhibiting instability, led to the ac-
suit. Thereafter, on 14th January, 1987 the Court of Ap- cident. It also charged that MIC was stored in a negli-
peal for the Second Circuit affirmed the decision of Judge gent manner and the local administration was not in-
Keenan but deleted the condition regarding the discov- formed, inter alia, of the dangerous effect of the expo-
ery under the American procedure granted in favour of sure of MIC or the gases produced by its reaction and
the Union of India. It also suo motu set aside the condi- the medical steps to be taken immediately. It was further
tion that on the judgement of the Indian court comply- stated that apart from the design defects the UCC did
ing with due process and the decree issued should be not take any adequate remedial action to prevent back
satisfied by UCC. It ruled that such a condition cannot flow of solution from VGS into RVVH and PVN lines.
be imposed as the situation was covered by the provi- There were various other acts of criminal negligence al-
sions of the Recognition of Foreign Country Money leged. The High Court passed an order staying the op-
Judgements Act. eration of the order dated 17-12-87 directing the defend-
ant-applicant to deposit Rs. 3500 million within two
11. On 2nd April, 1987, the court made a written pro- months from the date of the said order. On 4th April,
posal to all parties for considering reconciliatory interim 1988 the judgement and order were passed by the High
relief to the gas victims. In September, 1987, UCC and Court modifying the order of the Distt. Judge, and grant-
the Govt. of India sought time from the Court of Distt. ing interim relief of Rs. 250 crores. The High Court held
Judge, Bhopal, to explore avenues for settlement. It has that under the substantive law of torts, the Court has ju-
been asserted by the learned Attorney General that the risdiction to grant interim relief under Section 9 of the
possibility of settlement was there long before the full CPC. On 30th June, 1988 Judge Deo passed an order
and final settlement was effected. He sought to draw our restraining the Union Carbide from settling with any in-
attention to the assertion that the persons concerned were dividual gas leak plaintiffs. On 6th September, 1988 spe-
aware that efforts were being made from time to time for cial leave was granted by this Court in the petition field
settlement. However, in November 1987 both the Indian by UCC against the grant of interim relief and Union of
Govt. and the Union Carbide announced that settlement India was also granted special leave in the petition chal-
talks had failed and Judge Deo extended the time. lenging the reduction of quantum of compensation from
Rs. 350 crores to Rs.250 crores. Thereafter, these mat-
12. The Distt. Judge of Bhopal on 17th December, 1987 ters were heard in November-December 1988 by the
178
CHARAN L AL SAHU V U NION OF INDIA
bench presided over by the learned Chief Justice of In- “1. The parties acknowledge that the order dated Feb-
dia and hearing continued also in January -February 1989 ruary 14, 1989 disposes of in its entirety all proceed-
and ultimately on 14-15th February, 1989 the order cul- ings in Suit No. 1113 of 1986. This settlement shall
minating in the settlement was passed. finally dispose of all past, present and future claims,
causes of action and civil and criminal proceedings (of
any nature whatsoever wherever pending) by all In-
13. In judging the constitutional validity of the Act, the dian citizens and all public and private entities with
subsequent events, namely, how the Act has worked itself respect to all past, present or future deaths, personal
out, have to be looked into. It is, therefore, necessary to injuries, health effects, compensation, losses, damages
refer to the two orders of this Court. The proof of the and civil and criminal complaints of any nature what-
cake is in its eating, it is said, and it is perhaps not possi- soever against UCC. Union Carbide India Limited,
ble to ignore the terms of the settlement reached on 14th Union Carbide Eastern, and all of their subsidiaries
and 15th February 1989 in considering the effect of the and affiliates as well as each of their present and former
language used in the Act. Is that valid or proper - or has directors, officers, employees, agents, representatives,
attorneys, advocates and solicitors arising out of, re-
the Act been worked in any improper way? These ques-
lating to or connected with the Bhopal gas leak disas-
tions do arise. ter, including past, present and future claims, causes
of action and proceedings against each other. All such
14. On 14th February, 1989 an order was passed in C.A. claims and causes of action whether within or outside
Nos. 3187-88 with S.L.P. (C) No. 13080/88. The parties India of Indian citizens public or private entities are
thereto were UCC and the Union of India as well as Jana hereby extinguished, including without limitation each
Swasthya Kendra, Bhopal, Zehraeli Gas Kand Sangharsh of the claims filed or to be filed under the Bhopal Gas
Morcha, Bhopal, MP. That order recited that having con- Leak Disaster (Registration and Processing of Claims)
sidered all the facts and the circumstances of the case Scheme, 1985, and all such civil proceedings in India
are hereby transferred to this Court and are dismissed
placed before the Court, the material relating to the pro-
with prejudice, and all such criminal proceedings in-
ceedings in the Courts in the United States of America, cluding contempt proceedings stand quashed and ac-
the offers and counter-offers made between the parties cused deemed to be acquitted.
at different stages during the various proceedings, as well
as the complex issues of law and fact raised and the sub- 2. Upon full payment in accordance with the Court’s
missions made thereon, and in particular the enormity directions the undertaking given by UCC pursuant to the
of human suffering occasioned by the Bhopal gas disas- order dated Nov. 30, 1986 in the District Court, Bhopal
ter and the pressing urgency to provide immediate and stands discharged, and all orders passed in suit No. 1113
substantial relief to victims of the disaster, the Court of 1986 and or in any Revision therefrom, also stand dis-
found that the case was pre-eminently fit for an overall charged.”
settlement between the parties covering all litigations,
claims, rights and liabilities relating to and arising out 16. It appears from the statement of objects & reasons
of the disaster and it was found just, equitable and rea- of the Act that the Parliament recognized that the gas
sonable to pass, inter alia, the following orders:- leak disaster involving the release, on 2nd and 3rd De-
cember 1984 of highly noxious and abnormally danger-
“(1) The Union Carbide Corporation shall pay a sum ous gas from a plant of UCIL, a subsidiary of UCC, was
of U.S. Dollars 470 million (Four hundred and sev- of an unprecedented nature, which resulted in loss of life
enty millions) to the Union of India in full settlement and damage to property on an extensive scale, as men-
of all claims, rights and liabilities related to and aris- tioned before. It was stated that the victims who had
ing out of Bhopal Gas disaster.
managed to survive were still suffering from the adverse
(2) The aforesaid sum shall be paid by the Union Car- effects and the further complications which might arise
bide Corporation to the Union of India on or before 31st in their cases, of course, could not be fully visualized. It
March, 1989. was asserted by Ms. Indira Jaising that in case of some
of the victims the injuries were carcinogenic and on-
(3) To enable the effectuation of the settlement, all civil togenic and these might lead to further genetic compli-
proceedings related to an arising out of the Bhopal Gas cations and damages. The Central Government and the
disaster shall hereby stand transferred to this Court and Govt of Madhya Pradesh and various agencies had to
shall stand concluded in terms of the settlement, and all incur expenditure on a large scale for containing the dis-
criminal proceedings related to and arising out of the aster and mitigating or otherwise coping with the effects
disaster shall stand quashed wherever these may be pend- thereto. Accordingly, the Bhopal Gas Leak Disaster
ing....” (Processing of Claims) Ordinance, 1985 was promul-
gated, which provided for the appointment of a Com-
15. A written memorandum was filed thereafter and the missioner for the welfare of the victims of the disaster
Court on 15th February, 1989 passed an order after giv- and for the formulation of the Scheme to provide for
ing due consideration thereto. The terms of settlement various matters necessary for processing of the claims
were as follows: and for the utilization by way of disbursal or otherwise
179
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
of amounts received in satisfaction of the claims. 19. Section 4 of the Act is headed as “Claimant’s right
to be represented by a legal practitioner”. It provides
17. Thereafter, the Act was passed which received the as follows:-
assent of the President on 29th March, 1985, Section 2(b)
of the Act defines ‘claim’. It says that “claim” means (i) “Notwithstanding anything contained in Section 3, in
a claim, arising out of, or connected with, the disaster, representing, and acting in place of, any person in re-
for compensation or damages for any loss of life or per- lation to any claim, the Central Government shall have
sonal injury which has been, or is likely to be, suffered; due regard to any matters which such person may re-
quire to be urged with respect to his claim and shall, if
(ii) a claim, arising out of, or connected with, the disas-
such person so desires, permit at the expense of such
ter, for any damage to property which has been, or is person, a legal practitioner of his choice to be associ-
likely to be, sustained; (iii) a claim for expenses incurred ated in the conduct of any suit or other proceeding re-
or required to be incurred for containing the disaster or lating to his claim.”
mitigating or otherwise coping with the effects of the
disaster; (iv) any other claim (including any claim by 20. Section 5 deals with the powers of the Central Govt.
way of loss of business or employment) arising out of, and enjoins that for the purpose of discharging its func-
or connected with, the disaster. A “claimant” is defined tions under this Act, the Central Govt. shall have the pow-
as a person entitled to make a claim. It has been pro- ers of a civil court while trying a suit under the Code of
vided in the Explanation to Section 2 that for the pur- Civil Procedure, 1908. Section 6 provides for the appoint-
pose of clauses (b) and (c), where the death of a person ment of a Commissioner and other officers and employ-
has taken place as a result of the disaster, the claim for ees. Section 7 deals with powers to delegate. Section 8
compensation or damages for the death of such person deals with limitation, while Section 9 deals with the power
shall be for the benefit of the spouse, children (including to frame a Scheme. The Central Govt. was enjoined to
a child in the womb) and other heirs of the deceased and frame a scheme which was to take into account, inter alia,
they shall be deemed to be the claimants in respect the processing of the claims for securing their enforce-
thereof. ment, creation of a fund for meeting expenses in connec-
tion with the administration of the Scheme and of the pro-
18. Section 3 is headed “power of Central Govt. to rep- visions of this Act and the amounts which the Central
resent claimants”. It provides as follows:- Govt. might, after due appropriation made by the Parlia-
ment by law in that behalf, credit to the fund referred to
“3(1) Subject to the other provisions of this Act, the in clauses above and any other amounts which might be
Central Government shall, and shall have the exclu- credited to such fund. Such scheme was enjoined, as soon
sive right to, represent, and act in place of (whether as after it had been framed, to be laid before each House
within or outside India) every person who has made, of Parliament. Section 10 deals with removal of doubts.
or is entitled to make, a claim for all purposes con-
Section 11 deals with the overriding effect and provides
nected with such claim in the same manner and to the
same effect as such persons. that the provisions of the Act and of any Scheme framed
thereunder shall have effect notwithstanding anything in-
(2) In particular and without prejudice to the general- consistent therewith contained in any enactment other than
ity of the provisions of sub-section (1), the purposes re- the Act or any instrument having effect by virtue of any
ferred to therein include- enactment other than the Act.
(a) institution of any suit or other proceeding in or be- 21. A Scheme has been framed and was published on
fore any court or other authority (whether within or out- 24th September, 1985. Clause 3 of the said Scheme pro-
side India) or withdrawal of any such suit or other pro- vides that the Deputy Commissioners appointed under
ceeding, and (b) entering into a compromise. Section 6 of the Act shall be the authorities for registra-
tion of Claims (including the receipt, scrutiny and proper
(3) The provisions of sub-section (1) shall apply also categorisation of such claims under paragraph 5 of the
in relation to claims in respect of which suits or other Scheme) arising within the areas for their respective ju-
proceedings have been instituted in or before any court risdiction and they shall be assisted by such other offic-
or other authority (whether within or outside India) be- ers as may be appointed by the Central Govt. under Sec-
fore the commencement of this Act: tion 6 of the Act for scrutiny and verification of the claims
and other related matters. The Scheme also provides for
Provided that in the case of any such suit or other pro- the manner of filing claims. It enjoins that the Dy. Com-
ceeding with respect to any claim pending immediately missioner shall provide the required forms for filing the
before the commencement of this Act in or before any applications. It also provides for categorisation and reg-
court or other authority outside India, the Central Govt. istration of claims. Sub-clause (2) of Clause 5 enjoins
shall represent, and act in place of, or along with, such that the claims received for registration shall be placed
claimant, if such court or other authority so permits.” under different heads.
180
CHARAN L AL SAHU V U NION OF INDIA
22. Sub-clause (3) of Clause 5 enjoins that on the con- urged that the Act is valid and constitutional and that the
sideration of claims made under paragraph 4 of the settlement arrived at on 14th/15th February is proper and
Scheme, if the Dy. Commissioner is of the opinion that valid.
the claims fall in any category different from the cat-
egory mentioned by the claimant, he may decide the ap- 26. In order to appreciate the background Ms. Indira
propriate category after giving an opportunity to the Jaising placed before us the proceedings of the Lok Sabha
claimant to be heard and also after taking into consid- wherein Mr. Veerendra Patil, the Honourable Minister,
eration any facts made available to him in this behalf. stated on March 27, 1985 that the tragedy that had oc-
Sub-clause (5) of Clause 5 enjoins that if the claimant is curred in Bhopal on 2nd and 3rd December 1984 was
not satisfied with the order of the Dy Commissioner, he unique and unprecedented in character and magnitude
may prefer an appeal against such order to the Commis- not only for our country but for the entire world. It was
sioner, who shall decide the same. stated that one of the options available was to settle the
case in Indian courts. The second one was to file the cases
23. Clause 9 of the Scheme provides for processing of in American courts. Mr. Patil reiterated that the Govern-
Claims Account Fund, which the Central Govt. may, af- ment wanted to proceed against the parent company and
ter due appropriation made by Parliament, credit to the also to appoint a Commission of Inquiry.
said Fund. It provides that there shall also be a Claims
and Relief Fund, which will include the amounts received 27. Mr. Garg in support of the proposition that the Act
in satisfaction of the claims and any other amounts made was unconstitutional, submitted that the Act must be ex-
available to the Commissioner as donation or for relief amined on the touchstone of the fundamental rights on
purposes. Sub-clause (3) of clause 10 provides that the the basis of the test laid down by this Court in State of
amount in the said Fund shall be applied by the Com- Madras v. V.G. Row, 1952 SCR 597: (AIR 1952 SC 196).
missioner for disbursal of amounts in settlement of There at page 607 of the report (SCR): (at p. 199 of AIR)
claims, or as relief, or apportionment of part of the Fund this Court has reiterated that in considering the reasona-
for disbursal of amounts in settlement of claims arising bleness of the law imposing restrictions on the funda-
in future or for disbursal of amounts to the Govt. of mental rights, both the substantive and procedural as-
Madhya Pradesh for the social and economic rehabilita- pects of the impugned restrictive law should be exam-
tion of the persons affected by the Bhopal gas leak dis- ined from the point of view of reasonableness. And the
aster. test of reasonableness, wherever prescribed, should be
applied to each individual Statute impugned, and no ab-
24. Clause 11 of the Scheme deals with the disbursal, stract standard or general pattern of reasonableness can
apportionment of certain amounts, and sub-clause (2) be laid down as applicable to all cases. The nature of the
thereof enjoins that the Central Govt. may determine the right alleged to have been infringed, the underlying pur-
total amount of compensation to be apportioned for each pose of the restrictions imposed, the extent and urgency
category of claims and the quantum of compensation pay- of the evil sought to be remedied thereby, the dispropor-
able., in general, in relation to each type of injury or loss. tion of the imposition, the prevailing conditions at the
Sub-clause (5) there to provides that in case of a dispute time, should all enter into the judicial verdict. (The em-
as to disbursal of the amounts received in satisfaction of phasis supplied). Chief Justice Patanjali Sastri reiterated
claims, an appeal shall lie against the order of the Dy. that in evaluating such elusive factors and forming their
Commissioner to the Additional Commissioner, who may own conception of what is reasonable, in the circum-
decide the matter and make such disbursal as he may, for stances of a given case, it is inevitable that the social
reasons to be recorded in writing, think fit. The other philosophy and the scale of values of the judges partici-
clauses are not relevant for our present purposes. pating in the decision would play an important role.
Counsel for different parties in all these matters have can- 28. Hence, whether by sections, 3, 4 & 11 the rights of
vassed their submissions before us for the gas victims. the victims and the citizens to fight for their own causes
Mr. R.K. Garg, Ms. Indira Jaising, and Mr. Kailash and to assert their own grievances have been taken away
Vasudav have made various submissions challenging the validly and properly must be judged in the light of the
validity of the Act on various grounds. They all have sub- prevailing conditions at the time, the nature of the right
mitted that the Act should be read in the way they sug- of the citizen, the purpose of the restrictions on their rights
gested and as a whole. Mr. Santi Bhushan, appearing for to sue for enforcement in the courts of law or for punish-
interveners on behalf of Bhopal Gas Peedit Mahila Udyog ment for offences against his person or property, the ur-
Sangathan and following him Mr. Prashant Bhushan have gency and extent of the evils sought to be remedied by
urged that the Act should be read in the manner canvassed the act, and the proportion of the impairment of the rights
by them and if the same is not so read then the same would of the citizen with reference to the intended remedy pre-
be violative of the fundamental rights of the victims, and scribed. According to Mr. Garg, the present position calls
as such unconstitutional. The learned Attorney General for a comprehensive appreciation of the national and in-
assisted by Mr. Gopal Subramanium has on the other hand ternational background in which precious rights to life
181
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
and liberty were enshrined as fundamental rights and criminal prosecution and punishment to the delinquents.
remedy for them was also guaranteed under Article 32 The damages awarded in civil jurisdiction must be com-
of the Constitution. He sought to urge that multinational mensurate to meet well defined demands of evolved hu-
corporations have assumed powers or potencies to over- man rights jurisprudence in modern world. It was, there-
ride the political and economic independence of the sov- fore, submitted that punishment in criminal jurisdiction
ereign nations which have been used to take away in the for serious offences in modern world is independent of
last four decades, much wealth out of the Third World. the claims enforced in civil jurisdiction and no immu-
Now these are plundered much more than what was done nity against it can be granted as part of settlement in any
to the erstwhile colonies by imperialist nations in the civil suit. If any Act authorizes or permits doing of the
last three centuries of foreign rule. The role of courts in same, the same will be unwarranted by law and as such
cases of conflict between rights of citizens and the vast bad. The Constitution of India does not permit the same.
economic powers claimed by multinational corporations
to deny moral and legal liabilities for their corporate 29. Our attention was drawn to Art. 21 of the Constitu-
criminal activities should not be lost sight of. He, in this tion and the principles of international law. Right to equal-
background, urged that these considerations assume im- ity if guaranteed to every person under Art. 14 in all
mense importance to shape human rights jurisprudence matters like the laws of procedure for enforcement of
under the Constitution, and for the Third World to regu- any legal or constitutional right in every jurisdiction, sub-
late and control the power and economic interests of stantive law defining the rights expressly or by neces-
multinational corporations and the power of exploitation sary implications, denial of any of these rights to any
and domination by developed nations without submit- class of citizens in either field must have nexus with con-
ting to due observance of the laws of the developing coun- stitutionally permissible object and can never be arbi-
tries. It therefore appears that the production of, or car- trary. Arbitrariness is, therefore, antithetical to the right
rying on trade in dangerous chemicals by multinational of equality. In this connection, reliance was placed on
industries on the soil of Third World countries call for the observations of this Court in D.P. Royappa v. State
strictest enforcement of constitutional guarantees for of Tamil Nadu, (1974) 2 SCR 348: (AIR 1974 SC 555);
enjoying human rights in free India, urged Mr. Garg. In Maneka Gandhi v. Union of India, (1978) 2 SCR 621:
this connection, our attention was drawn to the Charter (AIR 1978 SC 597) where it was held that the view that
of Universal Declaration of Human Rights. Art. 1 of the Arts. 19 and 21 constitute watertight compartments has
Universal Declaration of Human Rights, 1948 reiterates been rightly overruled. Articles dealing with different
that all human-beings are born free and equal in dignity fundamental rights contained in Part III of the Constitu-
and rights. Art. 3 states that everyone has right to life, tion do not represent entirely separate streams of rights
liberty and security of person. Art. 6 of the Declaration which do not mingle at any point of time. They are all
states that everyone has the right to recognition every- parts of an integrated scheme in the Constitution and must
where as a person before the law. Art. 7 states that all are be preserved and cannot be destroyed arbitrarily. Reli-
equal before the law and are entitled without any dis- ance was placed on the observations in R.D. Shetty v.
crimination to equal protection of the law. All are enti- The I.A.A. of India, (1979 3 SCR 1014: (AIR 1979 SC
tled to equal protection against any discrimination in vio- 1628). Hence, the rights of the citizens to fight for rem-
lation of the Declaration of Human Rights and against edies and enforce their rights flowing from the breach of
any incitement to such discrimination. Art. 8 states that obligation in respect of crime cannot be obliterated. The
everyone has the right to an effective remedy by compe- Act and Ss. 3, 4 and 11 of the Act in so far as these pur-
tent national Tribunal for acts violating fundamental port to do so and have so operated, are violative of Arts.
rights guaranteed to him by the Constitution or by the 14, 19(1)(g) and 21 of the Constitution. The procedure
law. It is, therefore, necessary to bear in mind that In- envisaged by the said Sections deprives the just and le-
dian citizens have a right to live which cannot be taken gitimate rights of the victims to assert and obtain their
away by the union of India or the Government of a State, just dues. The rights cannot be so destroyed. It was con-
except by a procedure which is just, fair and reasonable. tended that under the law the victims had right to venti-
The right to life includes the right to protection of limb late their rights.
against mutilation and physical injuries, and does not
mean merely the right to breathe but also includes the 30. It was further contended that Union of India was a
right to livelihood. It was urged that this right is avail- joint tort-feasor along with UCC and UCIL. It had neg-
able in all its dimensions till the last breath against all ligently permitted the establishment of such a factory
injuries to head, heart and mind or the lungs affecting without proper safeguards exposing the victims and citi-
the citizen or his next generation or of genetic disorders. zens to great danger. Such a person or authority cannot
The enforcement of the right to life or limb calls for ad- be entrusted to represent the victims by denying the vic-
equate and appropriate reliefs enforceable in courts of tims their rights to plead their own cases. It was submit-
law and of equity with sufficient power to offer adequate ted that the object of the Act was to fully protect people
deterrence in all case of corporate criminal liability un- against the disaster of highly obnoxious gas and disaster
der strict liability, absolute liability, punitive liability and of unprecedented nature. Such an object cannot be
182
CHARAN L AL SAHU V U NION OF INDIA
achieved without enforcement of the criminal liability able as violative of Arts. 14, 19 and 21 of the Constitu-
by criminal prosecution. Entering into settlement with- tion. Similarly, the second writ petition, namely, Writ
out reference to the victims was, therefore, bad and un- Petition No. 268 which is filed by Sh. Charan Lal Sahu,
constitutional, it was urged. If an Act, it was submitted, who is also a practicing Advocate on behalf of the vic-
permits such a settlement or deprivation of the rights of tims and claims to have suffered damages as a result of
the victims, then the same is bad. the gas leak, challenges the Act. He further challenges
the settlement entered into under the Act. He says that
31. Before we deal with the various other contentions the said settlement was violative of principles of natural
raised in this case, it is necessary to deal with the appli- justice and the fundamental right of the said petitioner
cation for intervention and submission made on behalf and other victims. It is his case that in so far as the Act
of the Coal India in Writ Petition No. 268/89 wherein permits such a course to be adopted, such a course was
Mr. L.N. Sinha in his written submission had urged for not permissible under the Constitution. He further as-
the intervener that Art. 21 of the Constitution neither serts that the Union of India was negligent and a joint
confers nor creates nor determines the dimensions nor tort-feasor. In the premises, according to him, the Act is
the permissible limits of restrictions which appropriate bad, the settlement is bad and these should be set aside.
legislation might impose on the right to life or liberty.
He submitted that provisions for procedure are relevant 33. In order to determine the question whether the Act
in judicial or quasi judicial proceedings for enforcement in question is constitutionally valid or not in the light of
of rights or obligations. With regards to alteration of Arts. 14, 19(1)(g) and 21 of the Constitution, it is neces-
rights, procedure is governed by the Constitution directly. sary to find out what does the Act actually mean and
He sought to intervene on behalf of Coal India and wanted provide for. The Act in question, as the Preamble to the
these submissions to be taken into consideration. How- Act states, was passed in order to confer powers on the
ever, when this contention was sought to be urged be- Central Government to secure that the claims arising out
fore this Court on 25th April, 1989, after hearing all the of, or connected with, the Bhopal gas leak disaster are
parties, it appeared that there was no dispute between dealt with speedily, effectively, equitably and to the best
the parties in the instant writ petitions between the vic- advantage of the claimants and for matters incidental
tims and the Government of India that the rights claimed thereto. Therefore, securing the claims arising out of or
in these cases are referable to Art. 21 of the Constitu- connected with the Bhopal gas leak disaster is the object
tion. Therefore, no dispute really arises with regard to and purpose of the Act. We have noticed the proceedings
the contention of Coal India and we need not consider of the Lok Sabha in connection with the enactment of
the submissions urged by Shri Sinha on behalf of the the Act. Our attention was also drawn by the learned At-
intervener in this case. It has been so recorded. torney General to the proceedings of the Rajya Sabha
wherein the Honourable Minister, Shri Virendra Patil
32. By the order dated 3rd March 1989, Writ Petitions explained that the Bill enabled the Government to as-
Nos. 268/89 and 164/86 have been directed to be dis- sume exclusive right to represent and act, whether within
posed of by this Bench. We have heard these two writ or outside India in place of every person who had made
petitions along with the other writ petitions and other or was entitled to make claim in relation to the disaster
matters as indicated hereinbefore. The contentions are and to institute any suit or other proceedings or enter
common. The contentions are common. These writ peti- into any compromise as mentioned in the Act. The whole
tions question the validity of the Act and the settlement object of the Bill was to make procedural changes to the
entered into pursuant to the Act. Writ Petition No. 164/ existing Indian law which would enable the Central Gov-
86 is by one Shri Rakesh Shrouti who is an Indian citi- ernment to take up the responsibility of fighting litiga-
zen and claims to be a practicing advocate having his tion on behalf of the victims. The first point was that it
residence at Bhopal. He says that he and his family mem- sought to create a locus standi in the Central Govern-
bers were at Bhopal on 2nd/3rd December 1984 and suf- ment to file suits on behalf of the victims. The object of
fered immensely as a result of the gas leak. He chal- the statute, it was highlighted, was that because of the
lenges the validity of the Act on various grounds. He dimension of the tragedy covering thousands of people,
contends that the Union of India should not have the ex- large number of whom being poor, would not be able to
clusive right to represent the victims in suits against the go to the courts, it was necessary to create the locus standi
Union Carbide and thereby deprive the victims of their in the Central Government to start the litigation for pay-
right to sue and deny access to justice. He further chal- ment of compensation in the courts on their behalf. The
lenges the right of the Union of India to represent the second aspect of the Bill was that by creating this locus
victims against Union Carbide because of conflict of in- standi in the Central Government, the Central Govern-
terests. The conduct of the Union of India was also dep- ment became competent to institute judicial proceedings
recated and it was further stated that such conduct did for payment of compensation on behalf of the victims.
not inspire confidence. In the premises, the said peti- The next aspect of the Bill was to make a distribution
tioner sought a declaration under Art. 32 of the Consti- between those on whose behalf suits had already been
tution that the Act is void, inoperative and unenforce- filed and those on whose behalf proceedings had not yet
183
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
then been instituted. One of the Members emphasized proceedings, withdraw such proceedings or suit and also
that under Art. 21 of the Constitution, the personal lib- to enter into compromise. The victims of the heirs or the
erty of every citizen was guaranteed and it has been legal representatives of the victims are substituted and
widely interpreted as to what was the meaning of the their rights are vested in the Central Government. This
expression ‘personal liberty. It was emphasized that one happens by operation of Section 3 which is the legisla-
could not take away the right of a person, the liberty of a tion in question. Sub-section (3) of Section 3 makes it
person, to institute proceedings for his own benefit and clear that the provisions of sub-section (1) of Section 3
for his protection. It is from this point of view that it was shall also apply in relation to claims in respect of which
necessary, the member debated, to preserve the right of suits or other proceedings have been instituted in or be-
a claimant to have his own lawyers to represent him along fore any Court or other authority (whether within or out-
with the Central Government in the proceedings under side India) before the commencement of this Act, but
S. 4 of the Act, this made the Bill constitutionally valid. makes a distinction in the case or any such suit or other
proceeding with respect to any claim pending immedi-
34. Before we deal with the question of constitutional- ately before the commencement of this Act in or before
ity, it has to be emphasized that the Act in question deals any Court or other authority outside India, and provides
with the Bhopal gas leak disaster and it deals with the that the Central Government shall represent, and act on
claims meaning thereby claims arising out of or con- place of, or along with, such claimant, if such Court or
nected with the disaster for compensation of damages other authority so permits. Therefore, in cases where such
for loss of life or any personal injury which has been or suits or proceedings have been instituted before the com-
is likely to be caused and also claims arising out of or mencement of the Act in any Court or before any author-
connected with the disaster for any damages to property ity outside India, the section by its own force will not
or claims for expenses incurred or required to be incurred come into force in substituting the Central Government
for containing the disaster or making or otherwise cop- in place of the victims on the behalf of their legal repre-
ing with the impact of the disaster and other incidental sentatives, but the Central Government has been given
claims. The Act in question does not purport to deal with the right to act in place of, or along with, such claimant,
the criminal liability, if any, of the parties or persons provided such Court or other authority so permits. It is
concerned nor it deals with any of the consequences flow- to have adherence and conformity with the procedure of
ing from those. This position is clear from the provi- the countries or places outside India, where suits or pro-
sions and the Preamble to the Act. Learned Attorney ceedings are to be instituted or have been instituted.
General also says that the Act does not cover criminal Therefore, the Central Government is authorized to act
liability. The power that had been given to the Central along with the claimants in respect of proceedings insti-
Government is to represent the ‘claims’, meaning thereby tuted outside India subject to the orders of such courts or
the monetary claims. The monetary claims, as was ar- the authorities. Is such a right valid or improper?
gued on behalf of the victims, are damages flowing from
the gas disaster. Such damages, Mr Garg and Ms. Jaising 35. There is the concept known both in this country and
submitted, are based on strict liability, absolute liability abroad, called “parens patriae. Dr. B.K. Mukherjea in
and punitive liability. The Act does not, either expressly his ‘Hindu Law of Religious and Charitable Trusts,
or impliedly, deal with the extent of the damages or li- Tagore Law Lectures, Fifth Edition, at p. 454, referring
ability. Neither S. 3 nor any other section deals with any to the concept of parens patriae, has noted that in Eng-
consequences of criminal liability. The expression “the lish law, the Crown as parents patriae is the constitu-
Central Government shall, and shall have the exclusive tional protection of all property subject to charitable
right to, represent, and act in place of (whether within or trusts, such trusts being essentially matters of public con-
outside India) every person who has made, or is entitled cern. Thus the position is that according to Indian con-
to make, a claim for all purposes connected with such cept parens patriae doctrine recognized King as the pro-
claim in the same manner and to the same effect as such tector of all citizens and as parent. In Budhkaran
person”, read as it is, means that Central Government is Chaukhani v. Thakur Prosad Shah, AIR 1942 Cal 311
substituted and vested with the exclusive right to act in the position was explained by the Calcutta High Court at
place of the victims, i.e., eliminating the victims, their page 318 of the report. The same position was reiterated
heirs and their legal representatives, in respect of all such by the said High Court in Banku Behary v. Bank Behary
claims arising out of or connected with the Bhopal gas Hasra, AIR 1943 Cal 203 at p. 205 of the report. The
leak disaster. The right, therefore, embraces right to in- position was further elaborated and explained by the
stitute proceedings within or outside India along with Madras High Court in Kumaraswami Mudalia v.
right to institute any suit or other proceedings or to enter Rajammal, AIR 1957 Mad 563 at p. 567 of the report.
into compromise. Sub-section (1) of S. 3 of the Act, there- This Court also recognized the concept of parens partriae
fore, substitutes the Central Government in place of the relying on the observation of Dr. Mukherjee aforesaid in
victims. The victims, or their heirs and legal representa- Ram Saroop v. S.P. Sahi, (1959) 2 Supp SCR 583 at pp.
tives, get their rights substituted in the Central Govern- 598 and 599: (AIR 1959 SC951 at pp. 958-959). In the
ment along with the concomitant right to institute such “words and phrases” Permanent edition, Vol. 33 at p. 99,
184
CHARAN L AL SAHU V U NION OF INDIA
it is stated that parens partriae is the inherent power and ice scheme established pursuant to the Wagner-Peyser
authority of a Legislature to provide protection to the Act and the Immigration and Nationality Act of 1952.
person and property of persons non sui juris, such as Justice White referred to the meaning of the expression
minor, insane, and incompetent persons, but the words “parens patriae”. According to Black’s Law Dictionary,
“parens partriae” meaning thereby ‘the father of the coun- 5th Edition 1979, page 1003, it means literally ‘parent
try’, were applied originally to the King and are used to of the country’ and refers traditionally to the role of the
designate the state referring to its sovereign power of State as a sovereign and guardian of persons under legal
guardianship over persons under disability, (Emphasis disability. Justice White at page 1003 of the report em-
supplied). Parens partriae jurisdiction, it has been ex- phasized that the parens patriae action had its roots in
plained, is the right of sovereign and imposes a duty on the common-law concept of the “royal prerogative”. The
sovereign, in public interest, to protect persons under royal prerogative included the right or responsibility to
disability who have no rightful protector. The connota- take care of persons who were legally unable, on account
tion of the term “parens patriae” differs from country to of mental incapacity, whether it proceeds from nonage,
country, for instance, in England it is the King, in America idiocy, or lunacy to take proper care of themselves and
it is the people, etc. The Government is within its duty to their property. This prerogative of parens patriae is in-
protect and to control persons under disability. Concep- herent in the supreme power of every State, whether that
tually, the parens patriae theory is the obligation of the power is lodged in a royal person or in the legislature
state to protect and take into custody the rights and the and is a most beneficent function. After discussing sev-
privileges of its citizens for discharging its obligations. eral cases Justice White observed at page 1007 of the
Our Constitution makes it imperative for the State to se- report that in order to maintain an action, in parens pa-
cure to all its citizens the rights guaranteed by the Con- triae, the State must articulate an interest apart from the
stitution and where the citizens are not in a position to interests of particular parties, i.e. the State must be more
assert and secure their rights, the State must come into than a nominal party. The State must express a quasi-
the picture and protect and fight for the rights of the citi- sovereign interest. Again an instructive insight can be
zens. The preamble to the Constitution, read with the obtained from the observations of Justice Holmes of the
Directive Principles, Arts. 38, 39 and 39A enjoins the American Supreme Court in the case of Georgia v. Ten-
State to take up these responsibilities. It is the protective nessee Copper Co., (1970) 206 US 230: 51 L Ed. 1038:
measure to which the social welfare state is committed. 27 S Ct 618, which was a case involving air pollution in
It is necessary for the State to ensure the fundamental Georgia caused by the discharge of noxious gases from
rights in conjunction with the Directive Principles of State the defendant’s plant in Tennessee. Justice Holmes at
Policy to effectively discharge its obligation and for this page 1044 of the report describe the State’s interest as
purpose, if necessary, to deprive some rights and privi- follows:
leges of the individual victims or their heirs to protect
their rights better and secure these further. Reference may “This is a suit by a State for an injury to it in its capac-
be made to Alfred L. Snapp & Son, Inc. v. Puerto Rico, ity of quasi-sovereign. In that capacity the state has an
(1982) 458 US 592: 73 L Ed. 2d 995: 102 SCt 3260 in interest independent of and behind the titles of its citi-
this connection. There it was held by the Supreme Court zens, in all the earth and air within its domain. It has
the last word as to whether its mountains shall be
of the United States of America that Commonwealth of
stripped of their forests and its inhabitants shall breathe
Puerto have standing to sue as parens patriae to enjoin pure air. It might have to pay individuals before it could
apple growers’ discrimination against Puerto Rico mi- utter that word, but with it remains the final power...
grant farm workers. This case illustrates in some aspect
the scope of ‘parens patriae for Puerto Rican migrant When the States by their union made the forcible abate-
farm-workers, and against Virginia apple growers, to ment of outside nuisances impossible to each, they did
enjoin discrimination against Puerto Ricans in favour of not thereby agree to submit to whatever might be done.
Jamaican workers in violation of the Wagner-Peyser Act, They did not renounce the possibility of making reason-
and the Immigration and Nationality Act. The District able demands on the ground of their still remaining quasi-
Court dismissed the action on the ground that the Com- sovereign interests”.
monwealth lacked standing to sue, but the Court of Ap-
peal for the Fourth Circuit reversed it. On certiorari, the 36. Therefore, conceptually and from the jurispruden-
United States Supreme Court affirmed. In the opinion tial point of view, especially in the background of the
by White, J., joined by Surger, Chief Justice and Brennan, preamble to the Constitution of India and the mandate
Marshall, Blackmum, Rennquist, Stevens, and O’Connor, of the Directive Principles, it was possible to authorize
JJ., it was held that Puerto Rico had a claim to represent the Central Government to take over the claims of the
its quasi-sovereign interests in federal Court at least victims to fight against the multinational Corporation in
which was as strong as that of any State, and that it had respect of the claims. Because of the situation the vic-
parens patriae standing to sue to secure its residents from tims were under disability in pursuing their claims in the
the harmful effects of discrimination and to obtain full circumstances of the situation fully and properly. On its
and equal participation in the federal employment serv- plain terms the State has taken over the exclusive right
185
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
to represent and act in place of every person who has in the instant Act no such right was either asserted or
made or is entitled to make a claim for all purposes con- mentioned. The State also in its quasi-sovereign capac-
nected with such claim in the same manner and to the ity is entitled to bring suit against a private individual to
same effect as such person. Whether such provision is enjoin in a corporation not to discharge noxious gases
valid or not in the background of the requirement of the from its out of State plant into the suing State’s territory.
Constitution and the Code of Civil Procedure, is another Finally, it was emphasized that as ‘parens patriae’ on
debate. But there is no prohibition or inhibition, in our behalf of the citizens, where a State’s capacity as parens
opinion, conceptually or jurisprudentially for Indian State patriae is not negated by the federal structure, the pro-
taking over the claims of the victims or for the State act- tection of the general health, comfort, and welfare of the
ing for the victims as the Act has sought to provide. The State’s inhabitants has been held to give the State itself a
actual meaning of what the Act has provided and the sufficient interest. Ms. Jaising sought to contend that to
validity thereof, however, will have to be examined in the extent that the Act was not confined to empowering
the light of the specific submissions advanced in this case. the Government to sue on behalf of those who were not
sui generis but extended also to representing those who
37. Ms. Indira Jaising as mentioned hereinbefore on are, this exercise of the power cannot be referable to the
behalf of some other victims drew out attention to the doctrine of ‘parens patriae’. To the extent, it is not con-
background of the passing of the Act in question. She fined in enabling the Government to represent its citi-
drew our attention to the fact that the Act was to meet a zens in foreign jurisdiction but empowered it to sue in
specific situation that has arisen after the tragic disaster local courts to the exclusion of the victims it cannot be
and the dovent of American lawyers seeking to repre- said to be in exercise of doctrine of ‘parens patriae’, ac-
sent the victims in American courts. The Government’s cording to her. We are unable to agree. As we have indi-
view, according to her, as was manifest from the State- cated before conceptually and jurisprudentially there is
ment of Objects and Reasons, debates of the Parliament, no warrant in the background of the present Act, in the
etc. were that the interests of the victims would be best light of circumstances of the Act in question to confine
served if the Central Government was given the right to the concept into such narrow field. The concept can be
represent the victims in the courts of United States as varied to enable the Government to represent the vic-
they would otherwise be exploited by ‘ambulance-chas- tims effectively in domestic forum if the situation so
ers’ working on contingency fees. The Government also warrants. We also do not find any reason to confine the
proceeded initially on the hypothesis that US was the ‘parens patriae’ doctrine to only quasi-sovereign right of
most convenient forum in which to sue UCC. The Gov- the State independent of and behind the title of the citi-
ernment however feared that it might not have locus zen, as we shall indicate later.
standi to represent the victims in the courts of the United
States of America unless a law was passed to enable it to 38. It was further contended that deprivation of the rights
sue on behalf of the victims. The dominant object of the of the victims and denial of the rights of the victims or
Act, therefore, according to her, was to give to the Gov- the rights of the heirs of the victims to access to justice
ernment of India locus standi to sue on behalf of the vic- was unwarranted and unconstitutional. She submitted that
tims in foreign jurisdiction, a standing which it other- it has been asserted by the Government that the Act was
wise would not have had. According to her, the Act was passed pursuant to Entry 13 of the List I of the Seventh
never intended to give exclusive rights to the Central Gov- Schedule to the Constitution. It was therefore submitted
ernment to sue on behalf of the victims in India or abroad. that to the extent it was a law relating to civil procedure,
She drew our attention to the Parliamentary debates as it sets up a different procedure for the Bhopal gas vic-
mentioned hereinbefore. She drew our attention to the tims and denies to them equality before law, violating
expression ‘parens patriae’ as appearing in the Words Article 14 of the Constitution. Even assuming that due
and Phrases, Volume 31 p. 99. She contends that the Act to the magnitude of the disaster, the number of claim-
was passed to provide locus standi only to represent in ants and their disability, they constituted a separate class
America. She drew our attention to the “American Con- and that it was permissible to enact a special legislation
stitutional Law by Laurence B. Tribe, 1978 Edition at setting up a special procedure for them, the reasonable-
paragraph 3.24, where it was stated that in its capacity ness of the procedure has still to be tested. Its reasona-
as proprietor, a State may satisfy the requirement of in- bleness, according to her, will have to be judged on the
jury to its own interests by an assertion of harm to the touchstone of the existing Civil Procedure Code of 1908
state as such. It was further stated by the learned author and when so tested, it is found wanting in several re-
there that the State may sue under the federal anti-trust spects. It was also contended by the Government that it
laws to redress wrongs suffered by it as the owner of a was a legislation relating to “actionable wrongs” under
railroad and as the owner and operator of various public Entry 8 of the Concurrent List of the Seventh Schedule.
institutions. It was emphasized that in its quasi-sover- But so read, she said, it could only deal with the proce-
eign capacity, the state has an interest, independent of dural aspects and not the substantive aspect of “action-
and behind the titles of its citizens, in all the earth and able wrongs”. If it does, then the reasonableness of a
air within its domain. It was sought to be suggested that law must be judged with reference to the existing sub-
186
CHARAN L AL SAHU V U NION OF INDIA
stantive law of actionable wrongs and so judged it is in The Act, it was urged, deprives the victims of their rights
violation of many constitutional rights as it takes away out of all proportion to the object sought to be achieved,
from the victims the right to sue for actionable wrongs, namely, to sue in foreign jurisdiction or to represent those
according to counsel for the victims. According to her, it incapable of representing themselves. The said object
fails to take into account the law of strict liability of ul- could be achieved, according to counsel, by limiting the
tra hazardous activity as clarified by this Court in M.C. right to sue in foreign jurisdiction alone and in any event
Mehta’s case (supra). She further submitted that it is a representing only those victims incapable of represent-
bad act as it fails to provide for the right to punitive dam- ing themselves. The victims who wish to sue for and on
ages and destruction of environment. their own behalf must have power to sue, all proper and
necessary parties including Government of India, Gov-
39. It was contended on behalf of the Central Govern- ernment of Madhya Pradesh, UCIL and Shri Arjun Singh
ment that the Act was passed to give effect to the direc- to vindicate their right to life and liberty and their rights
tive principle as enshrined under Article 39-A of the cannot and should not be curtailed, it was submitted.
Constitution of India. It was, on the other side, submit- Hence, the Act goes well beyond its objects and imposes
ted that it is not permissible for the State to grant legal excessive restriction amounting to destruction of the right
aid on pain of destroying rights that inhere in citizens or of the victims, according to counsel. In deciding whether
on pain of demanding that the citizens surrender their any rights are affected, it is not the object of the Act that
rights to the State. The Act in fact demands a surrender is relevant but its direct and inevitable effect on the rights
of rights of the citizens to the State. On the interpreta- of the victims that is material. Hence no matter how laud-
tion of the Act, Ms. Indira Jaising submitted that Sec- able the object of the Act is alleged to be by the Govern-
tions 3 and 4 as noted above, give exclusive power to the ment of India, namely, that it is an Act to give effect to
Government to represent the victims and there is depri- Directive Principles enshrined in Article 39A of the Con-
vation of the victims’ right to sue for the wrongs done to stitution, the direct and inevitable effect of Section 3
them which is uncanalised and unguided and the expres- according to counsel for the victims is to deprive the vic-
sion “due regard” in Section 4 of the Act does not imply tims of the right to sue for and on their own behalf through
consent and as such violative of the rights of the victims. counsel of their choice and instead empower the Central
The right to be associated with the conduct of the suit is Government to sue for them.
hedged in with so many conditions that it is illusory.
According to her, a combined reading of Sections 3 and 41. The Act is, it was contended, unconstitutional be-
4 of the Act lend to the conclusion that the victims are cause it deprives the victims of their right to life and
displaced by the Central Government which has consti- personal liberty guaranteed by Article 21. The right to
tuted itself as the “surrogate” of the claimants, that they life and liberty includes the right to sue for violations of
have no control over the proceedings, that they have no the right, it was urged. The right to life guaranteed by
right to decide whether or not to compromise and if so Article 21 must be interpreted to mean all that makes
on what terms and they have no right to be heard by the life livable, life in all its fullness. According to counsel,
court before any such compromise is effected. There- it includes the right to livelihood. Reference was made
fore, Section 3 read with Section 4, according to her, to the decision of Olga Tellis v. U.M.C. (1985 Supp. 2
hands over to the Government all effective rights of the SCR 51 at p. 78-83). This right, it was contended, is in-
victims to sue and is a naked usurpation of power. It was separable from the remedy. It was urged that personal
submitted that in any event on a plain reading of the Act, liberty includes a wide range of freedoms to decide how
Section 3 read with Section 4 did not grant the Govern- to order one’s affairs. Reference was made to Maneka
ment immunity from being sued as a joint tort-feasor. Gandhi v. Union of India ()AIR 1978 SC 597) (supra).
The right to life and liberty also includes the right to
40. It was further urged that Section 9 makes the Gov- healthy environment free from hazardous pollutants. The
ernment the total arbiter in the matte of the registration, right to life and liberty, it was submitted, is inseparable
processing and recording of claims. Reference was made from the remedy to judicial vindication of the violation
to Section 9(2)(a),(b) and (c) and disbursal of claims of that right - the right of access to justice must be deemed
under Sections 9(2)(f) and 10. It was urged that the deputy to be part of that right. Therefore, the importance is given
Commissioner and Commissioner appointed under the to the right to file a suit for an actionable wrong. See
act and the Scheme are subordinates and agents of the Ganga Bai v. Vijay Kumar (1974) 3SCR 882 at p. 886:
Central Government. They replace impartial and inde- (AIR 1974 SC 1126 at p. 1128). According to counsel
pendent civil court by officers and subordinates of the appearing for the victims, the Act read strictly infringes
Central Government. Clause 11 of the Scheme makes the right to life and personal liberty because the right to
the Central Government according to counsel, judge in sue by the affected person for damages flowing from in-
its own cause inasmuch as the Central Government could fringement of their rights is taken away. Thus, it was
be and was in fact a joint tort-feasor. It was submitted submitted, that not just some incidents of the right to
that Sections 5 to 9 of the Act read with the Scheme do life, but the right itself in all its fullness is taken away.
not set up a machinery which is constitutionally valid. Such deprivation, according with procedure established
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
by law inasmuch as the law which takes away the right, December, 1985, that suits had been filed against the State
i.e., impugned Act is neither substantively nor of Madhya Pradesh, Shri Arjun Singh and UCIL which
procedurally just, fair or reasonable. A law which di- said suits cannot be deemed to have been settled by the
vests the victims of the right to sue to vindicate for life compromise/order of 14th/15th February, 1989. It was
and personal liberty and vests the said right in the Cen- also pointed out that Union of India was under a duty to
tral Government is not just, fair or reasonable. The vic- sue UCIL, which it had failed and neglected to do. It
tims are sui generis and able to decide for themselves was submitted that to the extent that the statute does not
how to vindicate their claims in accordance with law. provide for a pre-decisional hearing on the fairness of
There is, therefore, no reason shown to exist for divest- the proposed settlement or compromise by Court, it is
ing them of that right and vesting that on the Central voided as offending natural justice hence Articles 14 and
Government. 21 of the Constitution. Alternatively, it was contended
by the counsel that since the statute neither expressly
42. All the counsel for the victims have emphasized that nor by necessary implication bars the right to be heard
vesting of the right in Central Government is bad and by Court before any compromise is effected such a right
unreasonable because there is conflict of interests be- to a pre-decisional hearing by Court must be read into
tween the Central Government and the victims. It was Section 3(2)(b) of the Act. Admittedly, it does not ex-
emphasized that the conflict of interest has already preju- pressly exclude the right to a hearing by Court prior to
diced the victims in the conduct of the case inasmuch as any settlement being entered into. Far from excluding
a compromise unacceptable to the victims has been en- such a right by necessary implication, having regard to
tered into in accordance with the order of this Court of the nature of the rights affected, i.e., the right to life and
14th/16th February, 1989 without hearing the victims. personal liberty, such a right to hearing must be read into
This conflict of interest will continue, it was emphasized, the Act in order to ensure that justice is done to the vic-
to adversely effect the victims inasmuch as Section 9 of tims, according to all the counsel. The Act sets up a pro-
the Act read with clauses 6, 10 and 11 of the Scheme cedure different from the ordinary procedure established
empower the Central Government to process claims, by law, namely, Civil Procedure Code. But it was sub-
determine the category into which these fall, determine mitted that the act should be harmoniously read with the
the basis on which damages will be payable to each cat- provisions of Civil Procedure Code and if it is not so
egory and determine the amount of compensation pay- read, then the Act in question would be unreasonable
able to each claimant. Learned counsel urged that the and unfair. In this connection, reliance was placed on
right to a just, fair and reasonable procedure was itself a the provisions of Order I, Rule 4, Order 23, Rule 1 pro-
guaranteed fundamental right under Article 14 of the viso, Order 23, Rules 3-9 and Order 32, Rule 7 of CPC
Constitution. This included right to natural justice. Ref- and it was submitted that these are not inconsistent with
erence was made to Olga Tellis’s case (supra) and S.L. the Act. On the contrary these are necessary and com-
Kapoor v. Jagmohan (1981) 1 SCR 746 at pp. 753, 766: plementary, intended to ensure that there is no miscar-
(AIR 1981 SC 136 at p. 141). The right to natural justice riage of justice. Hence these must be held to apply to the
is included in Article 14. Union of India v. Tulsiram Patel facts and circumstances of the case and the impugned
(1985 Supp (2) SCR 131: (AIR 1985 SC 1416). Refer- Act must be read along with these provisions. Assuming
ence was also made to Maneka Gandhi’s case (supra). It that the said provisions do not ‘directly apply then, pro-
was contended by counsel that the right to natural jus- visions analogous to the said provisions must be read
tice is the right to be heard by Court at the pre-decisional with Section 3(2)(b) to make the Act reasonable, it was
stage, i.e., before any compromise is effected and ac- submitted. It was urged that if these are not so read then
cepted. Reference was made to the decision of this Court the absence of such provisions would vest arbitrary and
in Swadeshi Cotton Mills v. Union of India, (1981) 2 unguided powers in the Central Government making
SCR 533: (AIR 1981 SC 818). It was submitted that natu- Section 3(2)(b) unconstitutional. The said provisions are
ral justice is a highly effective tool devised by the Courts intended to ensure the machinery of accountability to
to ensure that a statutory authority arrives at a just deci- the victims and to provide to them an opportunity to be
sion. It was calculated to act as a healthy check on the heard by court before any compromise is arrived at. In
abuse of power. Natural justice is not dispensable nor is this connection, reference was made to Rule 23(3) of the
it an empty formality. Denial of that right can and has Federal Rules of Civil Procedure in America which pro-
led to the miscarriage of justice in this case. According vides for a hearing to the victims before a compromise
to counsel, if the victims had been given an opportunity is effective. The victims as plaintiffs in an Indian court
to be heard, they would, inter alia, have pointed out that cannot be subjected to a procedure which is less fair than
the amount agreed to be paid by UCC was hopelessly that provided by a US forum initially chosen by the Gov-
inadequate and that UCC, its officer and agents ought ernment of India, it was urged.
not to be absolved of criminal liability, that the Central
Government itself was liable to have been sued as a joint 43. Counsel submitted that Section 6 of the Act is un-
tort-feasor and, according to counsel, had agreed to sub- reasonable because it replaces an independent and im-
mit to a decree if found liable under the order dated 31st partial Civil Court of competent jurisdiction by an Of-
188
CHARAN L AL SAHU V U NION OF INDIA
ficer known as the Commissioner to be appointed by the be declared that the word “claim” in Section 2 does not
Central Government. No qualification, according to coun- include claims against Central Government or State of
sel, had been prescribed for the appointment of a Com- Madhya Pradesh or UCIL. Hence, it was urged that the
missioner and clause 5 of the Scheme framed under the rights of the victims to sue the Government of India, the
Act vests in the Commissioner the judicial function of State of Madhya Pradesh or UCIL would remain unaf-
deciding appeals against the order of the Deputy Com- fected by the Act or by the compromise effected under
missioner registering or refusing to register a claim. It the Act. Machinery to decide suit expeditiously has to
was further submitted that clause 11(2) of the Scheme is be devised, it was submitted. Other suits filed against
unreasonable because it replaces an independent and im- UCC, UCIL, state of Madhya Pradesh and Arjun Singh
partial civil court of competent jurisdiction with the Cen- should be transferred to the Supreme Court for trial and
tral Government, which is a joint tort-feasor for the pur- disposal, according to counsel. It was submitted that the
pose of determining the total amount of compensation Court should fix the basis of damages payable to differ-
to be apportioned for each category of claims and the ent categories, namely, death and disablement mentioned
quantum of compensation payable for each type of in- under clause 5(2) of the Scheme. Counsel submitted that
jury of loss. It was submitted that the said function is a this Court should set up a procedure which would en-
judicial function and if there is any conflict of interest sure that an impartial judge assisted by medical experts
between the victims and the Central Government, vesting and assessors would adjudicate the basis on which an
such a power in the Central Government amounts to individual claimant would fall into a particular category.
making it a judge in its own cause. It was urged that It was also urged that this Court should quantify the
having regard to the fact that amount received in satis- amount of compensation payable to each category of
faction of the claims is ostensibly pre-determined, claimant in clause 5(2) of the scheme. This decision can-
namely, 470 million dollars unless the order of 14th/15th not, it was submitted, be left to the Central Government
February is set aside which ought to be done, according as it purported to be done by clause 11(2) of the Scheme.
to counsel, the Central Government would have a vested
interest in ensuring that the amount of damages to be 46. This Court must set up, it was urged, a trust with
disbursed does not exceed the said amount. Even other- independent trustees to administer the trust and trustees
wise, according to counsel, the Government of India has to be accountable to this Court. An independent census
been sued as a joint tort-feasor, and as they would have a should be carried out of number of claimants, nature and
vested interest in depressing the quantum of damages, extent of injury caused to them, the category into which
payable to the victims. This would, according to coun- they fall. Apportionment of amounts should be set aside
sel, result in a deliberate underestimation of the extent or invested for future claimants, that is the category in
of injuries and compensation payable. clause 5(2)(a) of the Scheme, which is, according to coun-
sel, of utmost importance since the injuries are said to
44. Clause 11(4) of the Scheme, according to counsel, be carcinogenic and ontogenic and widely affecting per-
is unreasonable inasmuch as it does not take into account sons yet unborn.
the claims of the victims to punitive and exemplary dam-
ages and damages for loss and destruction of environ- 47. Shri Garg, further and on behalf of some of the vic-
ment. Counsel submitted that in any event the expres- tims counsel, urged before us that deprivation of the rights
sion “claims” in Section 2(b) cannot be interpreted to of the victims and vesting of those rights in the State is
mean claims against the Central Government, the State violative of the rights of the victims and cannot be justi-
of Madhya Pradesh, UCIL, which was not sued in suit fied or warranted by the Constitution. Neither Section 3
No. 1113/86 and Shri Arjun Singh, all of whom have nor Section 4 of the Act gives any right to the victims;
been sued as joint tort-feasors in relation to the liability on the other hand, it is a complete denial of access to
arising out of the disaster. Counsel submitted that if Sec- justice for the victims, according to him. This, accord-
tion 3 is to be held to be intra vires, the word “exclusive” ing to counsel, is arbitrary. He also submitted that Sec-
should be severed from Section 3 and on the other hand, tion 4 of the Act, as it stands, gives no right to the vic-
if Section 3 is held ultra vires, then victims who have tims and as such even assuming that in order to fight for
already filed suits or those who had lodged claims should the rights of the victims, it was necessary to substitute
be entitled to continue their own suits as well as Suit No. the victims even then in so far as the victims have been
1113/86 as plaintiffs with leave under Order 1 rule 8. denied the right of say, in the conduct of the proceed-
Counsel submitted that interim relief as decided by this ings, this is disproportionate to the benefit conferred upon
Court can be paid to the victims even otherwise also, the victims. Denial of rights to the victims is so great
according to counsel, under clause 10(2)(b) of the and deprivation of the right to natural justice and access
Scheme. to justice is so tremendous that judged by the well set-
tled principles by which yardsticks provisions like these
45. Counsel submitted that the balance of $470 million should be judged in the constitutional framework of this
after deducting interim relief as determined by this Court country, the Act is violative of the fundamental rights of
should be attached. In any event, it was submitted that, it the victims. It was further submitted by him that all the
189
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
rights of the victims by the process of this Act, the right and, therefore, there was violation, according to some of
of the victims to enforce full liability against the multi- the victims, both in the Act and in its implementation of
national as well as against the Indian Companies, abso- articles 14, 19(1)(g) and 21 of the Constitution.
lute liability and criminal liability have all been curtailed.
51. The principles of the decision on this Court in N.C.
48. All the counsel submitted that in any event, the Mehta v. Union of India, (1987) 1 SCR 819: (AIR 1987
criminal liability cannot be subject matter of this Act. SC 1086) must be so interpreted that complete justice is
Therefore, the Government was not entitled to agree to done and it in no way excludes the grant of punitive dam-
any settlement on the ground that criminal prosecution ages for wrongs justifying deterrents to ensure the safety
would be withdrawn and this being a part of the consid- of citizens in free India. No multinational corporation,
eration or inducement for settling the civil liability, he according to Shri Garg, can claim the privilege of the
submitted that the settlement arrived at on the 14th/15th protection of Indian law to earn profits without meeting
February, 1989 as recorded in the order of this Court is fully the demands of civil and criminal justice adminis-
wholly unwarranted, unconstitutional and illegal. tered in India with this Court functioning as the custo-
dian. Shri Garg urged that the liability for damages, in
49. Mr. Garg additionally further urged that by the pro- India and the Third world countries, of the multinational
cedure of the Act, each individual claim had to be first companies cannot be less but must be more because the
determined and the Government could only take over persons affected are often without remedy for reasons of
the aggregate of all individual claims and that could only inadequate facilities for protection of health or property.
be done by aggregating the individual claims of the vic- Therefore, the damages sustainable by Indian victims
tims. That was not done, according to him. Read in that against the multinationals dealing with dangerous gases
fashion, according to Shri Garg, the conduct of the Gov- without proper security and other measures are far greater
ernment in implementing the act is wholly improper and than damages suffered by the citizens of other advanced
unwarranted. It was submitted by him that the enforce- and developed countries. It is, therefore, necessary to en-
ment of the right of the victims without a just, fair and sure by damages and deterrent remedies that these mul-
reasonable procedure which is vitally necessary for rep- tinationals are not tempted to shift dangerous manufac-
resenting the citizens or victims was bad. It was further turing operations intended to advance their strategic ob-
urged by him that the Bhopal gas victims have been sin- jectives of profit and war to the Third World Countries
gled out for hostile discrimination resulting in total de- with little respect for the right to life and dignity of the
nial of all procedures of approach to competent courts people of sovereign third world countries. The strictest
and tribunals. It was submitted that the Central Govern- enforcement of punitive liability also serves the interest
ment was incompetent to represent the victims in the liti- of the American people. The act, therefore, according to
gation or for enforcement of the claims. It was then sub- Shri Garg, is clearly unconstitutional and therefore, void.
mitted by him that the claims of the victims must be en-
forced fully against the Union Carbide Corporation car- 52. It was urged that the settlement is without jurisdic-
rying on commercial activities for profit resulting in un- tion. This Court was incompetent to grant immunity
precedented gas leak disaster responsible for a large against criminal liabilities in the manner it has purported
number of amount of deaths and severe injuries to oth- to do by its order dated 14th/15th February, 1989, it was
ers. It was submitted that the liability of each party re- strenuously suggested by counsel. It was further submit-
sponsible, including the government of India, which is a ted that to hold the Act to be valid, the victims must be
joint tort-feasor along with the Union Carbide, has to be heard before the settlement and the act can only be valid
ascertained in appropriate proceedings. It was submit- if it is so interpreted. This is necessary further, accord-
ted on behalf of the victims that Union of India owned ing to Shri Garg, to lay down the scope of hearing. Shri
22% of the shares in Union Carbide and, therefore, it Garg also drew our attention to the scheme of disburse-
was incompetent to represent the victims. There was ment of relief to the victims. He submitted that the scheme
conflict of interest between the Union of India and the of disbursement is unreasonable and discriminatory be-
Union carbide and so Central Government was incom- cause there is no procedure which is just, fair and rea-
petent. It is submitted that pecuniary interest howsoever sonable in accordance with the provisions of Civil Pro-
small disqualifies a person to be a judge in his own cause. cedure Code. He further submitted that the Act does not
The settlement accepted by the Union of India, accord- lay down any guidelines for the conduct of the Union of
ing to various counsel is vitiated by the pecuniary bias India in advancing the claims of the victims. There were
as holders of its shares to the extent of 22%. no essential legislative guidelines for determining the
rights of the victims, the conduct of the proceedings on
50. It was submitted that the pleading in the court of behalf of the victims and for the relief claimed. Denial
the United States and in the Bhopal Court considered in of access to justice to the victims through an impartial
the context of the settlement order of this Court accepted judiciary is so great a denial that it can only be consist-
by the Union of India establish that the victims’ indi- ent with the situation which calls for such a drastic pro-
viduality were sacrificed wantedly [sic] and callously vision. The present circumstances were not such. He drew
190
CHARAN L AL SAHU V U NION OF INDIA
our attention to the decisions of this Court in Basheshar which are of such a nature as cannot be performed by a
v. Income tax Commr., AIR 1959 SC 149; in Re Special private individual or association unless powers are del-
Courts Bill, (1979) 2 SCR 476: (AIR 1979 SC 478); A.R. egated by sovereign authority of State.
Antulay v. R.S. Nayak, (1988) 2 SCC 602: (AIR 1988
SC 1531); Ram Krishna Dalmia v. Tendulkar, 1955 SCR 54. According to Shri Garg, the Union and the State
279: (AIR 1958 SC 538); Ambika Prasad v. State of U.P., Governments under the Constitution and as per laws of
(1980) 3 SCR 1159: (AIR 1980 SC 1762); and Hudhan the Factories, Environment Control, etc. are bound to
Chowdhary v. State of Bihar, (1955) 1 SCR 1045: (AIR exercise control on the factories in public interest and
1955 SC 191). Shri Garg further submitted that Article public purpose. These functions are not sovereign func-
21 must be read with Article 51 of the Constitution and tions, according to Shri Garg, and the Government in
other directive principles. He drew our attention to this case was guilty of negligence. In support of this,
Lakshmi Kant Pandey v. Union of India, (1984) 2 SCR Shri Garg submitted that the offence of negligence on
795: (AIR 1984 SC 469); M/s. Mackinnon Machkenzie the part of the Government would be evident from the
& Co. Ltd. v. Audrey D’Costa, (1987) 2 SCC 469: (AIR fact that-
1987 SC 1281); Sheela Barse v. Secy., Children Aid So-
ciety, (1987) 1 SCR 870: (AIR 1987 SC 656). Shri Garg a) the Government allowed the Union Carbide factory
submitted that in India, the national dimensions of hu- to be installed in the heart of the city;
man rights and the international dimensions are both
congruent and their enforcement is guaranteed under b) the Government allowed habitation in the front of
Articles 32 and 226 to the extent these are enforceable the factory knowing that the most dangerous and le-
against the State, these are also enforceable against thal gases were being used in the manufacturing proc-
transnational corporations inducted by the State on con- esses;
ditions of due observance of the Constitution and all laws
of the land. Shri Garg submitted that in the background c) the gas leakage from this factory was a common af-
of an unprecedented disaster resulting in extensive dam- fair and it was agitated continuously by the people,
age to life and property and the destruction of the envi- journalists and it was agitated in the Vidhan Sabha
ronment affecting large number of people and for the right from 1980 to 1984. These features firmly
full protection of the interests of the victims and for com- proved, according to Shri Garg, the grossest negli-
plete satisfaction of all claims for compensation, the Act gence of the government. Shri Garg submitted that
was passed empowering the Government of India to take the gas victims had legal and moral right to sue the
necessary steps for processing of the claims and for uti- government and so it had full right to implead all
lization of disbursal of the amount received in satisfac- the necessary and proper parties like Union Carbide,
tion of the claims. The Central Government was given UCIL, and also the then Chief Minister Shri Arjun
the exclusive right to represent the victims and to act in Singh of the State. He drew our attention to Order 2,
place of, in United States or in India, every citizen enti- R. 3 of the Civil Procedure Code. In suits on joint
tled to make a claim, Shri Garg urged that on a proper torts, according to Shri Garg, each of the joint tort-
reading of section 8(1) of the Act read with Section 4, feasors is responsible for the injury sustained for the
exclusion of all victims for all purpose is incomplete and common acts and they can all be sued together. Shri
the Act is bad. He submitted that the decree for adjudi- Garg’s main criticism has been that the most crucial
cation of the Court must ascertain the magnitude of the question of corporate responsibility of the peoples’
damages and should be able to grant reliefs required by right to life and their right to guard it as enshrined in
law under heads of strict liability, absolute liability and Article 21 of the Constitution were sought to be
punitive liability. gagged by the act. Shri Garg tried to submit that this
was an enabling Act only but not an Act which de-
53. Shri Garg submitted that it is necessary to consider prived the victims of their right to sue. He submitted
that the Union of India is liable for the torts. In several that in this Act, there is denial of natural justice both
decisions to which Shri Garg drew our attention, it has in the institution under Section 3 and in the conduct
been clarified that Government is not liable only if the of the suit under Section 4. It must be seen that jus-
tortious act complained has been committed by its serv- tice is done to all (R. Viswanathan v. Rukh-ul-Mulk
ants in exercise of its sovereign powers by which it is syed Abdul Wajid, (1963) 3 SCR 22: (AIR 1963 SC
meant powers that can be lawfully exercised under sov- 1). It was urged that it was necessary to give a rea-
ereign rights only vide Nandram Heeralal v. Union of sonable notice to the parties. He referred to M.
India, AIR 1978 Madh Pra 209 at p. 212. There is a real Narayanan Nambiar v. State of Kerala, 1963 Supp.
and marked distinction between the sovereign functions (2) SCR 724: (AIR 1963 SC 1116).
of the government and those which are non-sovereign
and some of the functions that fall in the latter category 55 Shri Shanti Bhushan appearing for Bhopal Gas
are those connected with trade, commerce, business and Peedit Mahila Udyog Sangathan submitted that if the Act
industrial undertakings. Sovereign functions are such acts is to be upheld, it has to be read down and construed in
191
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
the manner urged by him. It was submitted that when ion Carbide under Section 3 of the Act would be a suit of
the Bhopal gas disaster took place, which was the worst the kind contemplated by the Explanation to Order 23,
industrial disaster in the world which resulted in the Rule 3 of the Code of Civil Procedure since the victims
deaths of several thousands of people and caused seri- are not parties and yet the decree obtained in the suit
ous injuries to lakhs of others, there arose a right to the would bind them. It was, therefore, urged by Shri Shanti
victims to get not merely damages under the law of the Bhushan that the provisions of Section 3(1) of the Act
torts but also arose clearly, by virtue of right to life guar- merely empowers the Central Government to enter into
anteed as fundamental right by Article 21 of the Consti- a compromise but did not lay down the procedure which
tution a right to get full protection of life and limb. This was to be followed for entering into any compromise.
fundamental right also, according to Shri Shanti Bhushan, Therefore, there is nothing which is inconsistent with
embodied within itself a right to have the claim adjudi- the provisions of Order 23, Rule 3-B of the CPC to which
cated by the established courts of law. It is well settled the provisions Section 11 of the Act be applied. If, how-
that right of access to courts in respect of violation of ever, by any stretch of argument the provisions of the
their fundamental rights itself is a fundamental right Act could be construed so as to override the provisions
which cannot be denied to the people. Shri Shanti of Order 23, Rule 3-B CPC, it was urged, the same would
Bhushan submitted that there may be some justification render the provisions of the Act violative of the victims’
for the Act being passed. He said that the claim against fundamental rights and the actions would be rendered
the Union Carbide are covered by the Act. The claims of unconstitutional. If it empowered the Central Govern-
the victims against the Central Government or any other ment to compromise the victims’ rights, without even
party who is also liable under tort to the victims is not having to apply the principles of natural justice, then it
covered by the Act. The second point that Shri Shanti would be unconstitutional and as such bad. Mr. Shanti
Bhushan made was that the Act so far as it empowered Bhushan, Ms. Jaising and Mr. Garg submitted that these
the Central Government to represent and act in place of procedures must be construed in accordance with the pro-
the victims is in respect of the civil liability arising out visions contained in Order 23, Rule 3-B CPC and an op-
of disaster and not in respect of any right in respect of portunity must be given to those whose claims are being
criminal liability. The Central Government, according compromised to show to the court that the compromise
to Shri Shanti Bhushan, cannot have any right or author- is not fair and should not accordingly be permitted by
ity in relation to any offences which arose out of the dis- the court. Such a hearing in terms, according to counsel,
aster and which resulted in criminal liability. It was sub- of Order 23, Rule 3-B CPC has to be before the compro-
mitted that there cannot be any settlement or compro- mise is entered into. It was then submitted that Section 3
mise in relation to non-compoundable criminal cases and of the Act only empowers the Central Government to
in respect of compoundable criminal cases the legal right represent and act in place of the victims and to institute
to compound these could only be possessed by the vic- suits on behalf of the victims or even to enter into com-
tims alone and the Central Government could not com- promise on behalf of the victims.
pound those offences on their behalf. It was submitted
by Shri Shanti Bhushan that even this Court has no juris- 57 The Act does not create new causes of action; cre-
diction whatsoever to transfer any criminal proceedings ate special courts. The jurisdiction of the civil court to
to itself either under any provision of the Constitution or entertain suit would still arise out of Section 9 of the
under any provision of the Criminal ProcedureCcode or CPC and the substantive cause of action and the nature
under any other provision of law and, therefore, if the of the reliefs available would also continue to remain
settlement in question was to be treated not as a compro- unchanged. The only difference produced by the provi-
mise but as an order of the Court, it would be without sions of the Act would be that instead of the suit being
jurisdiction and liable to be declared so on the principles filed by the victims themselves the suit should be filed
laid down, according to Shri Bhushan, by this Court in by the Central Government on their behalf.
Antulay’s case (AIR 1988 SC 1531 (supra). Shri Shanti
Bhushan submitted that even if under the Act, the Cen- 58 Shri Shanti Bhushan then argued that the cause of
tral Government is considered to be able to represent the action of each victim is separate and entitled him to bring
victims and to pursue the litigation on their behalf and a suit for separate amount according to the damages suf-
even to enter into compromise on their behalf, it would fered by him. He submitted that even where the Central
be a gross violation of the constitutional rights of the Government was empowered to file suits on behalf of all
victims to enter into a settlement with the Union Car- the victims it could have been asked for by the victims
bide without giving the victims opportunities to express themselves, namely, a decree awarding various specified
their views about the fairness or adequacy of the settle- amounts to different victims whose names had to be dis-
ment before any court could permit such a settlement to closed. According to Shri Shanti Bhushan, even if all the
be made. details were not available at the time when the suit was
filed, the details of the victims damages had to be pro-
56 Mr. Shanti Bhushan submitted that the suit which cured and specified in the plaint before a proper decree
may be brought by the Central Government against Un- could be passed in the suit. Even if the subject matter of
192
CHARAN L AL SAHU V U NION OF INDIA
the suit had to be compromised between the Central bursed ultimately from the amount to be realized by the
Government and the Union Carbide the compromise had Central Government. This obligation was over and above
to indicate as to what amount would be payable to each the liability of the Central Government as a joint tort-
victim, in addition to the total amount which was pay- feasor, according to Shri Shanti Bhushan.
able by Union Carbide, submitted Shri Shanti Bhushan.
It was submitted that there was nothing in the Act which 61 Shri Kailash Vasdev, appearing for the petitioners
permitted the Central Government to enter into any gen- in writ petition No. 1551/86 submitted that the Act dis-
eral compromise with Union Carbide providing for the placed the claimants in the matter of their right to seek
lump sum amount without disclosure as to how much redressal and remedies of the actual injury and harm
amount is payable to each victim. caused individually to the claimants. The Act in ques-
tion by replacing the Central Government in place of the
59 If the Act in question had not been enacted, the vic- victims, by conferment of exclusive right to sue in place
tims would have been entitled to not only sue Union of victims, according to him, contravenes the procedure
Carbide themselves but also to enter into any compro- established by law. The right to sue for the wrong done
mise or settlement of their claims with the Union Car- to an individual was exclusive to the individual. It was
bide immediately. The provisions of the Act, according submitted that under the civil law of the country, indi-
to Mr. Shanti Bhushan, deprive the victims of their legal viduals have rights to enforce their claims and any dep-
right and such deprivation of their rights and creation of rivation would place them into a different category from
a corresponding right in the Central Government can be the other litigants. The right to enter into compromise, it
treated as reasonable only if the deprivation of their rights was further submitted, without consultation of the vic-
imposed a corresponding ability on the Central Govern- tims, if that is the construction of Section 3 read with
ment to continue to pay such interim relief to the victims Section 4 of the Act, then it is violative of procedure
as they might be entitled to till the time that the Central established by law. The procedure substituted if that be
Government is able to obtain the whole amount of com- the construction of the Act, would be in violation of the
pensation from the Union Carbide. He submitted that principles of natural justice and as such bad. It was sub-
the deprivation of the right of the victims to sue for their mitted that the concept of ‘parens patriae’ would not be
claims and denial of access to justice and to assert their applicable in these cases. It was submitted that tradition-
claims and the substitution of the Central Government ally, sovereigns can sue under the doctrine of ‘parents
to carry on the litigation for or on their behalf can only patriae’ only for violations of their “quasi-sovereign”
be justified, if and only if the Central Government is en- interests. Such interests do not include the claims of in-
joined to provide for such interim relief or continue to dividual citizens. It was submitted that the Act in ques-
provide in the words of Judge Keenan, as a matter of tion is different from the concept of parens patriae be-
fundamental human decency, such interim relief, neces- cause there was no special need to be satisfied and a class
sary to enable the victims to fight the battle. Counsel action, according to Shri Vasdev, would have served the
submitted that the act must be so read. Shri Shanti same purpose as a suit brought under the statute and ought
Bhushan urged that if the Act is construed in such a man- to have been preferred because it safeguarded claimants’
ner that it did not create such an obligation on the Cen- right to procedural due process. In addition, a suit brought
tral Government, the Act cannot be upheld as a reason- under the statute would threaten the victims’ substantive
able provision when it deprived the victims of their nor- due process rights. It was further submitted that in order
mal legal rights of immediately obtaining compensation to sustain an action, it was necessary for the Govern-
from Union Carbide. He referred to Section 10(b) of the ment of India to have standing.
Act and clauses 10 and 11(1) of the Scheme to show that
the legislative policy underlying the Bhopal Act clearly 62 Counsel submitted that ‘parens patriae’ has received
contemplated payment of interim relief to the victims no judicial recognition in this country as a basis for re-
from time to time till such time as the Central Govern- covery of money damages for injuries suffered by indi-
ment was able to recover from Union Carbide full amount viduals. He may be right to that extent but the doctrine
of compensation from which the interim reliefs paid by of parens partriae has been used in India in varying con-
the Central Government were to be deducted from the texts and contingencies.
amount payable to them by way of final disbursal of the
amounts recovered. 63 We are of the opinion that the Act in question was
passed in recognition of the right of the sovereign to act
60 The settlement is bad, according to Shri Shanti as parens patriae as contended by the learned Attorney
Bhushan if part of the bargain was giving up of the crimi- General. The Government of India in order to effectively
nal liability against UCIL and UCC. Shri Shanti Bhushan safeguard the rights of the victims in the matter of the
submitted that this Court should not hesitate to declare conduct of the case was entitled to act as parens patriae,
that the settlement is bad because the fight will go on which position was reinforced by the statutory provisions,
and the victims should be provided reliefs and interim namely, the Act. We have noted the several decisions re-
compensation by the Central Government to be reim- ferred to hereinbefore, namely, Bhudhkaran Chankhani
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
v. Thakur Prosad Shad (AIR 1942 Cal 311) (supra), mitted that the power to conduct the suit and to compro-
Banku Behary v. Banku Behari Hazra (AIR 1943 Cal mise, if necessary, was vested in the Central Govern-
203) (supra), Kumaraswami Mudaliar v. Rajammal (AIR ment for the purpose of the Act. The power to compro-
1951 Mad 563) (supra) and to the decision of this Court mise and to conduct the proceedings are not uncanalised
in Ram Saroop Dasji v. S.P. Sahi (AIR 1959 SC 951) or arbitrary. These were clearly exercisable only in the
(supra) and the decision of the American Supreme Court ultimate interests of the victims. The possibility of abuse
in Alfred Schnapp v. Puerto Rico (1982) 458 US 592 of a statute does not impart to it any element of invalid-
(supra). It has to be borne in mind that conceptually and ity. In this connection, the observations of Viscount
jurisprudentially the doctrine of parens patriae is not lim- Simonds in Belfast Corporation v. O.D. Cars (1960) AC
ited to representation of some of the victims outside the 490 at 520-21) are relevant where it was emphasized that
territories of the country. It is true that the doctrine has validity of a measure is not to be determined by its ap-
been so utilized in America so far. In our opinion, learned plication to particular cases. This Court in Collector of
Attorney General was right in contending that where citi- Customs, Madras v. Sampathu Chetty, (1962) 3 SCR 786
zens of a country are victims of a tragedy because of the at p. 825: (AIR 1962 SC 316) emphasized that the con-
negligence of any multinational, a peculiar situation stitutional validity of the statute would have to be deter-
arises which calls for suitable effective machinery to ar- mined on the basis of its provisions and on the ambit of
ticulate and effectuate the grievances and demands of its operation as reasonably construed. It has to be borne
the victims, for which the conventional adversary sys- in mind that if upon so judged it passes the test of rea-
tem would be totally inadequate. The State in discharge sonableness, then the possibility of the powers conferred
of its sovereign obligation must come forward. The In- being improperly used is no ground for pronouncing the
dian state because of its constitutional commitment if law itself invalid. See in this connection also the obser-
obliged to take upon itself the claims of the victims and vations in P.J. Irani v. State of Madras (1962) 2 SCR 169
to protect them in their hour of need. Learned Attorney at p. 178 to 181: (AIR 1961 SC 1731 at pp. 1736, 1737)
General was also right in submitting that the decisions and D.K. Trivedi v. State of Gujarat 1986 (supp) SCC 20
of the Calcutta, Madras and U.S. Supreme Court clearly at p. 60-61: (AIR 1986 SC 1323 at p. 1350).
indicate that parens patriae doctrine can be invoked by
sovereign state within India, even if it be contended that 64 Sections 3 and 4 of the Act should be read together
it has not so far been invoked inside India in respect of as contended by the learned Attorney General, along with
claims for damages of victims suffered at the hands of other provisions of the Act and in particular Sections 9
the multinational. In our opinion, conceptually and and 11 of the Act. These should be appreciated in the
jurisprudentially, there is no bar on the State to assume context of the object sought to be achieved by the Act as
responsibilities analogous to parens patriae to discharge indicated in the Statement of Objects and Reasons and
the State’s obligations under the Constitution. What the the Preamble to the Act. The Act was so designed that
Central Government has done in the instant case seems the victims of the disaster are fully protected and the
to us to be an expression of its sovereign power. This claims of compensation or damages for loss of life or
power is plenary and inherent in every sovereign state to personal injuries or in respect of other matters arising
do all things which promote the health, peace, morals, out of or connected with the disaster are processed speed-
education and good order of the people and tend to in- ily, effectively, equitably and to the best advantage of
crease for the wealth and prosperity of the state. Sover- the claimants. Section 3 of the Act is subject to other
eignty is difficult to define. (See in this connection, provisions of the Act which includes Sections 4 and 11.
Weaver on Constitutional Law, p. 490). By the nature of Section 4 of the Act opens with non obstante clause, vis-
things, the state sovereignty in these matters cannot be a-vis, Section 3 and, therefore, overrides Section 3.
limited. It has to be adjusted to the conditions touching Learned Attorney General submitted that the right of the
the common welfare when covered by legislative Central Government under section 3 of the Act was to
enactments. This power is to the public what the law of represent the victims exclusively and act in the place of
necessity is to the individual. It is comprehended in the the victims. The Central Government, it was urged, in
maxim salus populi suprema lex regard for public wel- other words, is substituted in the place of the victims
fare is the highest law. It is not a rule, it is an evolution. and is the dominus litus. Learned Attorney General sub-
This power has always been as broad as public welfare mitted that the dominus litus carries with it the right to
and as strong as the arm of the state, this can only be conduct the suit in the best manner as it deems fit, in-
measured by the legislative will of the people, subject to cluding, the right to withdraw and right to enter into com-
the fundamental rights and constitutional limitations. This promise. The right to withdraw and the right to compro-
is an emanation of sovereignty subject to as mise conferred by Section 3(2) of the act cannot be exer-
aforesaid.[sic] Indeed, it is the obligation of the State to cised to defeat the rights of the victims. As to how the
assume such responsibility and protect its citizens. It has rights should be exercised is guided by the objects and
to be borne in mind, as was stressed by the learned At- reasons contained in the preamble, namely, to speedily
torney General, that conferment of power and the man- and effectively process the claims of the victims and to
ner of its exercise are two different matters. It was sub- protect their claims. The Act was passed replacing the
194
CHARAN L AL SAHU V U NION OF INDIA
Ordinance at a time when many private plaintiffs had sented by separate counsel even though the Act empow-
instituted complaints/suits in the American Courts. In ers the Union to be the sole plaintiff. Learned Attorney
such a situation, the Government of India acting in place General submitted that Section 4 of the Act clearly ena-
of the victims necessarily should have right under the bled the victims to exercise their right of participation in
statute to act in all situations including the position of the proceedings. The Central Government was enjoined
withdrawing the suit or to enter into compromise. to have due regard to any matter which such person might
Learned Attorney General submitted that if the UCC were require to be urged. Indeed, the learned Attorney Gen-
to agree to pay a lump sum amount which would be just, eral urged very strenuously that in the instant case,
fair and equitable, but insists on a condition that the pro- Zehreeli Gas Kand Sangharsh Morcha and Jana Swasthya
ceedings should be completely withdrawn, then neces- Kendra (Bhopal) had filed before the District Judge,
sarily there should be power under the Act to so with- Bhopal, an application under Order 1 Rule 8 read with
draw. According to him, therefore the act engrafted a pro- Order 1 Rule 10 and Section 151 of the CPC for their
vision empowering the Government to compromise. The intervention on behalf of the victims. They had partici-
provisions under Section 3(2)(b) of the Act to enter into pated in the hearing before the learned District Judge,
compromise was consistent with the powers of dominus who referred to their intervention in the order. It was
litis. In this connection, our attention was drawn to the further emphasized that when the UCC went up in revi-
definition of ‘Dominus litis’ in Black’s Law Dictionary, sion to the High Court of Madhya Pradesh at Jabalpur
Fifth Edition, p. 437, which states as follows: against the interim compensation ordered to be paid by
the District Court, the intervener through its Advocate,
“‘Dominus litis’. The master of the suit; i.e. the per- Mr. Vibhuti Jha had participated in the proceedings. The
son who was really and directly interested in the suit aforesaid Association had also intervened in the civil
as a party, as distinguished from his attorney or advo- appeals preferred pursuant to the special leave granted
cate. But the term is also applied to one who, though by this Court to the Union of India and Union Carbide
nor originally a party, has made himself such, by in-
against the judgement of the High Court for interim com-
tervention or otherwise, and has assumed entire con-
trol and responsibility for one side and is treated by pensation. In those circumstances it was submitted that
the Court as liable for costs. Virginia Electric & Power there did not exist any other gas victim intervening in
Co. v. Bowers 181 Va 542, 25 S.E. 2d 361.263". the proceedings, claiming participation under Section 4.
Hence, the right to compromise provided for by the Act
65 Learned Attorney General sought to contend that could not be held to be violative of the principles of natu-
the victims had not been excluded entirely either in the ral justice. According to the learned Attorney General,
conduct of proceedings or in entering into compromise, this Court first proposed the order to counsel in court
and he referred to the proceedings in detail emphasizing and after they agreed thereto, dictated the order on 14th
the participation of some of the victims at some stage. February, 1989. On 15th February, 1989 after the Memo-
He drew our attention to the fact that the victims had randum of Settlement was filed pursuant to the orders of
filed separate consolidated complaints in addition to the the court, further orders were passed. The said Associa-
complaint filed by the government of India. Judge Keenan tion, namely, Zehreeli Gas Kand Sangharsh Morcha was
of the District Court of America had passed orders per- present, according to the records, in the Court on both
mitting the victims to be represented not only by the pri- the dates and did not apparently object to the compro-
vate Attorneys but also by the Government of India. mise. Mr. Charanlal Sahu, one of the petitioners in the
Hence, it was submitted that it could not be contended writ petition, had watched the proceedings and after the
that the victims had been excluded. Learned Attorney Court had passed the order on 15th February, 1989 men-
General further contended that pursuant to the orders tioned that he had filed a suit for Rs. 100 crores. Learned
passed by Judge Keenan imposing certain conditions Attorney General submitted that Mr. Sahu neither pro-
against the Union Carbide and allowing the motion for tested against the settlement nor did he make any prayer
forum non convenience of the UCC that the suit came to be heard. Shri Charan Lal Sahu, in the petition of op-
back to India and was instituted before the District Court position in one of these matters have prayed that a sum
of Bhopal. In those circumstances, it was urged by the of Rs. 100 million should be paid over to him for him-
learned Attorney General that the private plaintiffs who self as well as on behalf of those victims whom he
went to America and who were represented by the con- claimed to represent. In the aforesaid background on the
tingency lawyers fully knew that they could also have construction of the Section, it was urged by the learned
joined in the said suit as they were before the American Attorney General that Section 3 of the Act cannot be held
Court along with the Government of India. It was con- to be unconstitutional. The same provided a just, fair and
tended that in the proceedings at any point of time or reasonable procedure and enabled the victims to partici-
stage including when the compromise was entered into, pate in the proceedings at all stages - those who were
these private plaintiffs could have participated in the court capable and willing to do so. Our attention was drawn to
proceedings and could have made their representation, the fact that Section 11 of the Act provides that the pro-
if they so desired. Even in the Indian suits, these private visions of the act shall have effect notwithstanding any-
parties have been permitted to continue as parties repre- thing inconsistent therewith contained in any other en-
195
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
actment other than the Act. It was, therefore, urged that neither been impeached nor revoked or withdrawn. By
the provisions of the Civil Procedure Code stood virtue of the powers of attorney the Union of India, it
overriden in respect of the areas covered by the Act, was stated, had the authority to file the suits and to com-
namely, (a) representation, (b) powers of representation; promise the interests of the victims if so required. The
and (c) compromise. Act in question itself contemplates settlement as we have
noted, and a settlement would need a common spokes-
66 According to the learned Attorney General, the Act man.
did not violate the principles of natural justice. The pro-
visions of the CPC could not be read into the Act for It was submitted that the Government of India as the statu-
Section 11 of the Act provides that the application of the tory representative discharged its duty and is in a cen-
provision of the Civil Procedure Code in so far as those tralized position of assessing the merits and demerits of
were inconsistent with the Act should be construed as any proposed course of action. So far as the act of com-
overridden in respect of areas covered by it. Furthermore, promise, abridging or curtailing the ambit of the rights
inasmuch as Section 4 had given a qualified right of par- of the victims, it was submitted that in respect of liabili-
ticipation to the victims, there cannot be any question of ties of UCC & UCIL, be it corporate, criminal or tor-
violation of the principles of natural justice. The scope tious, it was open to an individual to take a decision of
of the application of the principles of natural justice can- enforcing the liability to its logical extent or stopping
not be judged by any strait-jacket formula. According to short of it and acceding to a compromise. Just as an indi-
him, the extension of the principles of natural justice vidual can make an election in the matter of adjudica-
beyond what is provided by the act in Sections 3 & 4, tion of liability so can a statutory representative make an
was unwarranted and would deprive the provisions of election. Therefore, it is wholly wrong to contend, it was
the statute of their efficacy in relation to the achieve- urged, that Section 3(ii) (b) is inconsistent with individu-
ment of ‘speedy relief’, which is the object intended to al’s right of election and at the same time it provides the
be achieved. He emphasized that the process of notice, centralized decision making processes to effectively ad-
consultation and exchange of information, informed de- judge and secure the common good. It was only a cen-
cision-making process, the modalities of assessing a con- tral agency like the Government of India, who could have
sensus of opinion would involve such time that the Gov- a perspective of the totality of the claims and a vision of
ernment would be totally unable to act in the matter effi- the problems of individual plaintiffs in enforcing these,
ciently, effectively and purposefully on behalf of the vic- it was urged. It was emphasized that it has to be borne in
tims for realization of the just dues of the victims. He mind that a compromise is a legal act. In the present case,
further urged that the Civil Procedure Code before its it is a part of the conduct of the suit. It is, therefore, im-
amendment in 1976 did not have the provisions of Order perative that the choice of compromise is made carefully,
I Rules 8(4), (5) & (6) and Explanations etc. nor Order cautiously and with a measure of discretion, it was sub-
XXIII Rules 3A and 3B. Before the amendment the High mitted. But if any claimant wished to be associated with
Court had taken a view against the requirement of hear- the conduct of the suit, he would necessarily have been
ing the parties represented in the suit under Order I, Rule afforded an opportunity for that purpose, according to
8 before it before settling or disposing of the suit. Our the learned Attorney General. In this connection, refer-
attention was drawn to the decision of the Calcutta High ence was made to Section 4 of the Act. On the other hand,
Court in Chintaharan Ghose v. Gujaraddi Sheik. AIR an individual who did not participate in the conduct of
1951 Cal 456 at pp. 457-459, wherein it was held by the the suit and who is unaware of the various intricacies of
learned single Judge that the plaintiff in a representative the case could hardly be expected to meaningfully par-
suit had right to compromise subject to the conditions take in the legal act of settlement either in conducting
that the suit was properly filed in terms of the provisions the proceedings or entering into compromise, it was
of that Rule and the settlement was agreed bona fide. urged. In those circumstances, the learned Attorney Gen-
Learned Attorney General in that context contended that eral submitted that the orders of 14-15th February, 1989
when the suit was validly instituted, the plaintiff had a and the Memorandum of Settlement were justified both
right to compromise the suit and there need not be any under the Act and the Constitution. According to him,
provision for notice to the parties represented before the terms of Settlement might be envisaged as pursuant
entering into any compromise. Reliance was placed on to Section 3(ii)(b) of the Act, which was filed according
the decision of the Allahabad High Court in Ram Sarup to him pursuant to judicial direction. He sought more
v. Nanak Ram, AIR 1952 All 275, where it was held that than once to emphasize, that the order was passed by the
a compromise entered into in a suit filed under Order I, highest Court of the land in exercise of extraordinary
Rule 8 of the CPC was binding on all persons as the jurisdiction vested in it under the Constitution.
plaintiffs who had instituted the suit in representative
capacity had the authority to compromise. He further 68 Our attention was drawn to several decisions for the
submitted that most, if not all, of the victims had given power of this Court under Articles 136 and 142 of the
their power of attorney which were duly filed in favour Constitution. Looked closely at the provisions of the act,
of the Union of India. These powers of attorney have it was contended that taking into consideration all the
196
CHARAN L AL SAHU V U NION OF INDIA
factors, namely, possibilities of champerty, exploitation, General that while the Government of India had pro-
unconscionable agreements and the need to represent the ceeded against the UCC, it had to represent the victims
dead and the disabled, the course of events would reveal as a class and it was not possible to define each indi-
a methodical and systematic protection and vindication vidual’s right after careful scrutiny, nor was it necessary
of rights to the largest possible extent. It was observed or possible to do so in a mass disaster case. The settle-
that the rights are indispensably valuable possessions, ment was a substitute for adjudication since it involved a
but the right is something which a man can stand on, process of reparation and relief. The relief and repara-
something which must be demanded or insisted upon tion cannot be said to be irrelevant for the purpose of the
without embarrassment or shame. When rights are cur- Act. It was stated that the alleged liability of the Gov-
tailed, permissibility of such a measure can be examined ernment of India kor any claim asserted against the joint
only upon the strength, urgency and the pre-eminence of tort feasors should not be allowed to be a constraint on
rights and the largest good of the large number sought to the Government of India to protect the interests of its
be served by curtailment. Under the circumstances which own citizens. Any counter-claim by UCC or any claim
were faced by the victims of Bhopal gas tragedy, the jus- by a citizen against the Government cannot vitiate the
tifying basis, according to the learned Attorney General, action of the State in the collective interest of the vic-
or ground of human rights is that every person morally tims, who are the citizens. Learned Attorney General
ought to have something to which he or she is entitled. It submitted that any industrial activity, normally, has to
was emphasized that the Statute aimed at it. The Act pro- be licensed. The mere regulation of any activity does not
vides for assumption of rights to sue with the aim of carry with it legally a presumption of liability for injury
securing speedy, effective and equitable results to the caused by the activity in the event of a mishap occurring
best advantage of the claimants. The Act and the scheme, in the course of such an activity. In any event, the learned
according to the learned Attorney General, sought to Attorney General submitted that Government of India
translate that profession into a system of faith and possi- enjoys sovereign immunity in accordance with settled
ble association when in doubt. Unless such a profession law. If this were not the case, the Sovereign will have to
is shown to be unconscionable under the circumstances abandon all regulatory functions including the licensing
or strikes judicial conscience as a subversion of the ob- of drivers of automobiles. Hence, we have to examine
jects of the Act, a declaredly fair, just and equitable ex- the question whether even on the assumption that there
ercise of a valid power would not be open to challenge. was negligence on the part of the Government of India
He disputed the submission that the right to represent in permitting licensing of the industry set up by the Un-
victims postulated as contended mainly by the counsel ion Carbide in Bhopal or permitting the factory to grow
on behalf of the petitioners, a predetermination of each up, such permission or conduct of the Union of India
individual claim as a sine qua non for proceeding with was responsible for the damage which has been suffered
the action. Such a construction would deplete the case as a result of Bhopal gas leakage. It is further to be ex-
of its vigour, urgency and sense of purpose, he urged. In amined whether such conduct was in discharge of the
this case, with the first of the cases having been filed in sovereign functions of the Government, and as such dam-
U.S. Federal Court on December 7, 1984 a settlement ages, if any, resulting therefrom are liable to be proceeded
would have been reached for a much smaller sum to the against the Government as a joint tort-feasor or not. In
detriment of the victims. Learned Attorney General em- those circumstances, it was further asserted on behalf of
phasized that this background has to be kept in mind the Union of India that though calculation of damages in
while adjudging the validity of the Act and the appropri- a precise manner is a logical consequence of a suit in
ateness of the conduct of the suit in the settlement en- progress it cannot be said to be a condition precedent for
tered into. the purpose of settling the matter. Learned Attorney Gen-
eral urged that the accountability to the victims should
69 He submitted that it has to be borne in mind that if be through the court. He urged that the allegation that a
the contentions of the petitioners are entertained, the large number of victims did not give consent to the set-
rights theoretically might be upheld but the end of jus- tlement entered into is really of no relevance in the mat-
tice would stand sacrificed. It is in those circumstances ter of a compromise in a mass tort action. It was high-
that it was emphasized that the claimant is an individual lighted that it is possible that those who do not need ur-
and is the best person to speak about his injury. The gent relief or are uninformed of the issues in the case
knowledge in relation to his injury is relevant for the may choose to deny consent and may place the flow of
purpose of compensation, whose distribution and dis- relief in jeopardy. Thus, consent based upon individual
bursement is the secondary stage. It is fallacious to sug- subjective opinion can never be correlated to the pro-
gest that the plaint was not based upon necessary data. posal of an overall settlement in an urgent matter. Learned
He insisted that the figures mentioned in the plaint al- Attorney General urged further that if indeed consent
though tentative were not mentioned without examina- were to be insisted upon as a mandatory requirement of
tion or analysis. a statute, it would not necessarily lead to an accurate
reflection of the victims’ opinion as opinions may be di-
70. It was further submitted by the learned Attorney verse. No individual would be in a position to relate him-
197
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
self to a lump sum figure and would not be able to define by Parliament or by State Legislatures. Any injury caused
his expectations on a global criteria. In such circum- to a person, to his life or liberty in the conduct of a li-
stances the value of consent is very much diminished. It censed authority so as to make the said licensing author-
was urged that if at all consent was to be insisted it should ity or the government liable to damages would not be in
not be an expression of the mind without supporting in- conformity with jurisprudential principle. If in such cir-
formation and response. To make consent meaningful it cumstances, it was urged on behalf of the Government,
is necessary that it must be assertion of a right to be ex- the public exchequer is made liable it will cause great
ercised in a meaningful manner based on information public injury and may result in drainage of the treasury.
and comprehension of collective welfare and individual It would terrorise the welfare state from acting for de-
good. In a matter of such dimensions the insistence upon velopment of the people, and will affect the sovereign
consent will lead to a process of enquiry which might governmental activities which are beneficial to the com-
make effective consideration of any proposal impossi- munity not being adequately licensed and would thereby
ble. For the purpose of affording consent, it would also lead to public injury. In any event, it was urged on behalf
be necessary that each individual not only assesses the of the Government, that such licensing authorities even
damages to himself objectively and places his opinion in assuming without admitting could be held to be liable as
the realm of fair expectation, but would also have to do joint tort-feasors, it could be so held only on adequate
so in respect of others. The learned Attorney General allegations of negligence with full particulars and de-
advanced various reasons why it is difficult now or im- tails of the alleged act or omission of the licensing au-
possible to have the concurrence of all. thority alleged and its direct nexus to the injury caused
to the victims. It had to be proved by cogent and ad-
71 In answer to the criticism by the petitioners, it was equate evidence. On some conjecture or surmise with-
explained on behalf of the Union of India that UCIL was out any foundation on facts, Government’s right to rep-
not impleaded as a party in the suit because it would resent the victims cannot be challenged. It was asserted
have militated against the pleas of multi-national enter- that even if the Government is considered to be liable as
prise liability and the entire theory of the case in the a joint tort-feasor, it will be entitled to claim sovereign
plaint. It was highlighted that the power to represent under immunity on the law as it now stands.
the Act was exclusive, the power to compromise for the
Government of India is without reference to the victims, 73. Reference was made to the decision of this Court in
yet it is a power guided by the sole object of the welfare Kasturilal Ralia Ram Jain v. State of U.P. (1965) 1 SCR
of the victims. The presence and ultimately the careful 375: (AIR 1965 SC 1039), where the conduct of some
imprimatur of the judicial process is the best safeguard police officers in seizing gold in exercise of their statu-
to the victims. Leaned Attorney General insisted that tory powers was held to be in discharge of the sovereign
hearing the parties after the settlement would also not functions of the State and such activities enjoyed sover-
serve any purpose. He urged that it can never be ascer- eign immunities. The liability of the Government of In-
tained with certainty whether the victims or groups have dia under the Constitution has to be referred to Article
authorized what was being allegedly spoken on their 300, which takes us to Sections 15 and 18 of the Indian
behalf; and that the victims would be unable to judge a Independence Act, 1947, and Section 176(1) of the Gov-
proposal of this nature. A method of consensus need not ernment of India Act, 1935. Reference was also made to
be evolved like in America where every settlement made the observations of this Court in State of Rajasthan v.
by contingency fee lawyers who are anxious to obtain Mst. Vidhyawati, 1962 (2) Supp SCR 989: (AIR 1962
their share automatically become adversaries of the vic- SC 933).
tims and the court should therefore be satisfied. Here the
court arrived at the figure and directed the parties to file 74. We have noted the shareholding of UCC. The cir-
a settlement on the basis of its order of February 14, 1989 cumstances that financial institutions held shares in the
and the intervenors were heard, it was urged. It was also UCIL would not disqualify the Government of India from
urged that notice to the victims individually would have acting as parens partriae and in discharging of its statu-
been a difficult exercise and analysis of their response tory duties under the Act. The suit was filed only against
time-consuming. UCIL. On the basis of the claim made by the Govern-
ment of India, UCIL was not a necessary party. It was
72. The learned Attorney General urged that neither the suing only the multi-national based on several legal
Central Government nor the State Government of grounds of liability of the UCC, inter alia, on the basis
Madhya Pradesh is liable for the claim of the victims. of enterprise liability. If the Government of India had
He asserted that, on the facts of the present case, there is instituted a suit against UCIL to a certain extent it would
and can be no liability on their part as joint tort-features. have weakened its case against UCC in view of the judge-
For the welfare of the community several socio-economic ment of this Court in M.C. Mehta’s Case, (AIR 1987 SC
activities will have to be permitted by the Government. 1086) (supra). According to learned Attorney General,
Many of these activities may have to be regulated by the Union of India in the present case was not proceed-
licensing provisions contained in Statutes made either ing on the basis of lesser liability of UCC predicated in
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CHARAN L AL SAHU V U NION OF INDIA
Mehta’s case but on a different jurisprudential principle 76. It was also urged that the doctrine of de facto repre-
to make UCC strictly and absolutely liable for the entire sentation will also apply to the facts and the circum-
damages. stances of the present case. Reliance was placed on the
decision of this Court in Gokaraju Rangaraju v. State of
75. The learned Attorney General submitted that even A.P., (1981) 3 SCR 474: (AIR 1981 SC 1473) where it
assuming for the purpose of argument without conced- was held that the doctrine of de facto representation en-
ing that any objection can be raised for the Government visages that acts performed within the scope of assumed
of India representing the victims, to the present situation official authority in the interest of public or third per-
the doctrine of necessity applied. The UCC had to be sons and not for one’s own benefit, are generally to be
sued before the American courts. The tragedy was treated treated as binding as if they were the acts of officers de
as a national calamity, and the Government of India had jure. This doctrine is founded on good sense, sound policy
the right, and indeed the duty, to take care of its citizens, and practical expediency. It is aimed at the prevention of
in the exercise of its parens patriae jurisdiction or on prin- public and private mischief and protection of public and
ciple analogous thereto. After having statutorily armed private interest. It avoids endless confusion and need-
itself in recognition of such parens patriae right or on less chaos. Reference was made to the observation of
principles analogous thereto, it went to the American this Court in Pushpadevi Jatia v. M.L. Wadhawan, (1987)
courts. No other person was properly designed for rep- 3 SCC 367 at pp. 389-390 and M/s. Beopar Sahayak (P)
resenting the victims as a foreign court had to recognize Ltd. v. Vishwa Nath, (1987) 3 SCC 693 at pp. 702 &
a right of representation. The Government of India was 703: (AIR 1987 SC 2111). Apart from the aforesaid doc-
permitted to represent the victims before the American trine, doctrine of bona fide representation was sought to
courts. Private plaintiffs were also represented by their be resorted to in the circumstances. In this connection,
attorneys. A Committee of three attorneys was formed reference was made to Dharampal Singh v. Director of
before the case proceeded before Judge Keenan. It was Small Industries Services, AIR 1980 SC 1828, D.K.
highlighted that the order of Judge Keenan permitted the Mohammad Sulaiman v. N.C. Mohammad Ismail, (1966)
Government of India to represent the victims. If there 1 SCR 937: (AIR 1966 SC 792) and Malkarjun in
was any remote conflict of interests between the Union Shigramappa Pasare v. Narhari Bin Shivappa, (1900) 27
of India and the victims from the theoretical point of Ind App 216 (PC).
view the doctrine of necessity would override the possi-
ble violation of the principles of natural justice - that no 77. It was further submitted that the initiation of crimi-
man should be Judge in his own case. Reference may be nal proceedings and then quashing thereof would not
made to Halsbury’s laws of England, Vol, 1 4th Ed., page make the Act ultra vires so far as is concerned [sic].
89, para 73, where it was pointed that if all the members Learned Attorney General submitted that the Act only
of the only tribunal competent to determine a matter are authorized the Government of India to represent the vic-
subject to disqualification, they may be authorized and tims to enforce their claims for damages under the Act.
obliged to hear that matter by virtue of the operation of The Government as such had nothing to do with the
the common law doctrine of necessity. Reference was quashing of the criminal liability of UCC or UCIL to the
also made to De Smith’s Judicial Review of Administra- victims. He further submitted that quashing of criminal
tive Action (4th Edition pages 276-277). See also G.A. proceedings and it was not representing the victims in
Flick - Natural Justice (1379, pages 138-141). Reference respect of the criminal proceedings was done by the Court
was also made to the observations of this Court in J. in exercise of plenary powers under Articles 136 and 142
Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 103: of the Constitution. In this connection, reference was
(AIR 1984 SC 1572), where at page 112 of the report made to State of U.P. v. Poosu, (1976) 3 SCR 1005: (AIR
the Court recognized the principle of necessity. It was 1976 SC 1750), K.M. Nanavati v. State of Bombay,
submitted that these were situations where on the princi- (1961) I SCR 497: (AIR 1961 SC 112). According to the
ple of doctrine of necessity a person interested was held learned Attorney General, there is also power in the Su-
not disqualified to adjudicate on his rights. The present preme Court to suggest a settlement and give relief as in
is a case where the Government of India only represented Ram Gopal v. Smt. Sarubai, (1981) 4 SCC 505, India
the victims as a party and did not adjudicate between the Mica & Micanite Industries Ltd. v. State of Bihar, (1982)
victims and the UCC. It is the Court which would adju- 3 SCC 182.
dicate the rights of the victims. The representation of the
victims by the Government of India cannot be held to be 78 Leaned Attorney General urged that the Supreme
bad, and there is and there was no scope of violation of Court is empowered to act even outside a Statute and
any principle of natural justice. We are of the opinion in give relief in addition to what is contemplated by the
the facts and the circumstances of the case that this con- latter in exercise of its plenary power. This court acts not
tention urged by Union of India is right. There was no only as a Court of Appeal but is also a Court of Equity.
scope of violation of the principle of natural justice on See Roshanlal Nuthiala v. Mohan Singh, (1975) 2 SCR
this score. 491: (AIR 1975 SC 824). During the course of hearing
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
of the petitions, he informed this Court that the Govern- court recognized that there was another aspect of the
ment of India and the State Government of Madhya review pertaining to the part of the settlement which
Pradesh refuted and denied any liability, partial or total, terminated the criminal proceedings. The questions
of any sort in the Bhopal gas leak disaster, and this posi- raised on the point in the review-petitions, the Court
tion is supported by the present state of law. It was, how- was of the view, prima facie merit consideration and,
ever, submitted that any claim against the Government therefore, abstained from saying anything which
of India for its alleged tortious liability was outside the might tend to pre-judge this issue one way or the
purview of the Act and such claims, if any, are not extin- other.
guished by reason of the orders dated 14th & 15th Feb-
ruary, 1989 of this Court. 81 The basic consideration, the Court recorded, moti-
vating the conclusion of the settlement was the compel-
79. Learned Attorney General further stated that the ling need for urgent relief, and the Court set out the law’s
amount of $470 million which was secured as a result of delays only considering that there was a compelling duty
the memorandum of settlement and the said orders of both judicial and humane, to secure immediate relief to
this Court would be meant exclusively for the benefit of the victims. In doing so, the court did not enter upon any
the victims who have suffered on account of the Bhopal forbidden ground, the Court stated. The Court noted that
gas leak disaster. The Government of India would not indeed efforts had already been made in this direction
seek any reimbursement on account of the expenditure by Judge Keenan and the learned District Judge of
incurred suo motu for relief and rehabilitation of the Bhopal. Even at the opening of the arguments in the ap-
Bhopal victims nor will the Government or its instru- peals, the Court had suggested to learned counsel to reach
mentality make any claim on its own arising from this a just and fair settlement. And when counsel met for re-
disaster. He further assured this Court that in the event scheduling of the hearings the suggestion was reiterated.
of disbursement of compensation being initiated either The Court recorded that the response of learned counsel
under the Act or under the orders of this Court, a notifi- was positive in attempting a settlement but they expressed
cation would be instantaneously issued under Section a certain degree of uneasiness and skepticism at the pros-
5(3) of the Act authorizing the Commissioner or any other pects of success in view of their past experience of such
officers to discharge functions and exercise all or any negotiations when, as they stated, there had been unin-
powers which the Central Government may exercise formed and even irresponsible criticism of the attempts
under Section 5 to enable the victims to place before the at settlement.
Commissioner or the Deputy Commissioner any addi-
tional evidence that they would like to be considered. 82 Learned Attorney General had made available to the
Court the particulars of offers and counter-offers made
80. The Constitution Bench of this Court presided over on previous occasions and the history of settlement. In
by the learned Chief Justice has pronounced an order on those circumstances, the Court examined the prima facie
4th May, 1989 giving reasons for the orders passed on material as the basis of quantification of a sum which,
14th-15th February, 1989. Inasmuch as good deal of criti- having regard to all the circumstances including the pros-
cism was advanced before this Court during the hearing pect of delays inherent in the judicial process in India
of the arguments on behalf of the petitioners about the and thereafter in the matter of domestication of the de-
propriety and validity of the settlement dated 14th-15th cree in the U.S. for the purpose of execution and directed
February, 1989 even though the same was not directly in that 470 million US dollars, which upon immediate pay-
issue before us it is necessary to refer briefly to what the ment with interest over a reasonable period, pleading
Constitution Bench has stated in the said order dated 4th actual distribution amongst the claimants, would aggre-
May, 1989. After referring to the facts leading to the set- gate to nearly 500 million US dollars or its rupee equiva-
tlement, the Court has set out the brief reasons on the lent of approximately Rs. 750 crores which the learned
following points:- Attorney General had suggested, be made the basis of
settlement, and both the parties accepted this direction.
(a) How did the Court arrive at the sum of 470 million
US dollars for an overall settlement? (b) Why did 83 The Court reiterated that the settlement proposals
the Court consider the sum of 470 million dollars as were considered on the premise that the Government had
‘just, equitable and reasonable’? (c) Why did the the exclusive statutory authority to represent and act on
Court not pronounce on certain important legal ques- behalf of the victims and neither counsel had any reser-
tions of far-reaching importance said to arise in the vation on this. The order was also made on the premise
appeals as to the principles of liability of monolithic, that the Act was a valid law. The Court declared that in
economically entrenched multinational companies the event the Act is declared void in the pending pro-
operating with inherently dangerous technologies in ceedings challenging its validity, the order dated 14th
the developing countries of the third world? These February, 1989 would require to be examined in the light
questions were said to be of great contemporary rel- of that decision. The Court also reiterated that if any ma-
evance to the democracies of the third world. This terial was placed before it from which a reasonable in-
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CHARAN L AL SAHU V U NION OF INDIA
ference was possible that the UCC had, at any time ear- 86. The Court recognized the effect of death and reiter-
lier, offered to pay any sum higher than an outright down ated that loss of precious human lives is irreparable. The
payment of US 470 million dollars, this Court would law can only hope to compensate the estate of a person
straight away initiate suo motu action requiring the con- whose life was lost by the wrongful act of another only
cerned parties to show cause why the order dated 14th in the way the law was equipped to compensate i.e. by
February 1989 should not be set aside and the parties monetary compensation calculated on certain well-rec-
relegated to their original positions. The Court reiterated ognized principles. “Loss to the estate” which is the en-
that the reasonableness of the sum was based not only in titlement of the estate and the ‘loss of dependency’ esti-
independent quantification but the idea of reasonable- mated on the basis of capitalised present value award-
ness for the present purpose was necessarily a broad and able to the heirs and dependants, this Court considered,
general estimate in the context of a settlement of the dis- were the main components in the computation of com-
pute and not on the basis of an accurate assessment by pensation in fatal accident actions, but the High Court
adjudication. The Court stated that the question was, how adopted a higher basis. The Court also took into account
good or reasonable it was as a settlement, which would the personal injury cases, and stated that these
avoid delay, uncertainties and assure immediate payment. apportionments were merely broad considerations gen-
An estimate in the very nature of things, would not have erally guiding the idea of reasonableness of the overall
the accuracy of an adjudication. The Court recorded the basis of settlement, and reiterated that this exercise was
offers, counter-offers, reasons and the numbers of the not a pre-determination of the quantum of compensa-
persons treated and the claims already made. The Court tion amongst the claimants either individually or cat-
found that from the order of the High Court and the ad- egory-wide; and that the determination of the actual quan-
mitted position on the plaintiff’s side, a reasonable prima tum compensation payable to the claimants has to be done
facie estimate of the number of fatal cases and serious by the authorities under the Act. These were the broad
personal injury cases, was possible to be made. The Court assessments and on that basis the Court made the as-
referred to the High Court’s assessment and procedure sessment. The Court believed that this was a just and
to examine the task of assessing the quantum of interim reasonable assessment based on the materials available
compensation. The Court referred to M.C. Mehta’s case at that time. So far as the other question, namely, the
(AIR 1987 SC 1086) reiterated by the High Court, bear- vital juristic principles of great contemporary relevance
ing in mind the factors that if the suit proceeded to trial to the Third World generally, and to India in particular,
the plaintiff-Union of India would obtain judgement in touching problems emerging from the pursuit of such
respect of the claims relating to deaths and personal in- dangerous technologies for economic gains by
juries in the following manner:- (a) Rs. 2 lakhs in each multinations in this case, the Court recognized that these
case of death; (b) Rs. 2 lakh in each case of total perma- were great problems and reiterated that there was need
nent disability, (c) Rs. 1 lakh in each case of permanent to solve a national policy to protect national interests
partial disablement; and (d) Rs. 50,000/- in each case of from such ultra hazardous pursuits of economic gain; ...
temporary partial disablement. that Jurists, technologists and other experts in Econom-
ics, environmentology, futurology, Sociology and pub-
84. Half of these amounts were awarded as interim com- lic health should identify the areas of common concern
pensation by the High Court. to help in evolving proper criteria which might receive
judicial recognition and legal protection. The Court reit-
85. The figures adopted by the High Court in regard to erated that some of the problems were referred to in M.C.
the number of fatal cases and case of serious personal Mehta’s case (AIR 1987 SC 1086) (supra). But in the
injuries did not appear to have been disputed by any- present case, the compulsions of the needs for immedi-
body before the High Court, this Court observed. From ate relief to tens of thousand of suffering victims could
those figures, it came to the conclusion that the total not wait till these questions, vital though they be, were
number of fatal cases was about 3000 and of grievous resolved in the course of judicial proceedings; and the
and serious personal injuries, as verifiable from the tremendous suffering of thousands of persons compelled
records was 30,000. This Court also took into consid- this Court to move into the direction of immediate relief
eration that about 8 months after the occurrence a sur- which, this Court thought, should not be subordinated to
vey had been conducted for the purpose of identification the uncertain promises of the law, and when the assess-
of cases. These figures indicated less than 10,000. In those ment of fairness of amount was based on certain factors
circumstances, as a rough and ready estimate, this Court and assumptions not disputed even by the plaintiffs.
took into consideration the prima facie findings of the
High Court and estimated the number of fatal cases at 87. Before considering the questions of constitutional
3000 where compensation could range from Rs. 1 lakh validity of the Act, in the context of the background of
to Rs. 3 lakhs. This would account for Rs. 70 crores, the facts and circumstances of this case and submissions
nearly 3 times higher than what would have otherwise made, it is necessary to refer to the order dated 3rd March,
been awarded in comparable cases in motor vehicles ac- 1989 passed by the Constitutional Bench in respect of
cident claims. writ petitions Nos. 164/86 and 268/89, consisting of 5
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
learned Judges presided over by the Honourable the Chief Pradesh, is on a wrong basis. There is no curtailment of
Justice of India. The order stated that these matters would any right with respect to any criminal liability. Criminal
be listed on 8th March, 1989 before the Constitution liability is not the subject-matter of the Act. By the terms
Bench for decision “on the ... question whether the of the Act and also on the concessions made by the
Bhopal Gas Leak Disaster (Processing of Claims) Act, learned Attorney General, if that be so, then can non-
1985 was ultra vires”. This is a judicial order passed by prosecution in criminal liability be a consideration or
the said Constitution Bench. This is not an administra- valid consideration for settlement of claims under the
tive order. Thus, these matters are before this Court. The Act? This is a question which has been suggested and
question, therefore arises: What are these matters? The articulated by learned counsel appearing for the victims.
aforesaid order specifically states that these matters were On the other hand, it has been asserted by the learned
placed before this Bench on the sole question” whether counsel appearing for the victims. On the other hand, it
the Act is ultra vires. Hence, these matters are not before has been asserted by the learned Attorney General that
this Bench for disposal of these writ petitions. If as a part of the order dated 14/15th February, 1989 dealing
result of the determination, one way or the other, it is with criminal prosecution or the order of this Court was
held, good and bad, and that some relief becomes neces- by virtue of the inherent power of this Court under Arti-
sary, the same cannot be given or an order cannot be cles 136 and 142 of the Constitution. These, the learned
passed in respect thereof, except declaring the Act or any Attorney General said, were in the exercise of plenary
portion of the Act, valid or invalid constitutionally as the powers of this Court. These are not considerations which
decision might be. induced the parties to enter into settlement. For the pur-
pose of determination of constitutional validity of the
88. In writ petition No. 268/89 there is consequential Act, it is however necessary to say that criminal liability
prayer to set aside the order dated 14/15th February, 1989. of any of the delinquents or of the parties is not the sub-
But since the order dated 3rd March, 1989 above only ject-matter of this Act and the Act does not deal with
suggests that these matters have been placed before this whether claims or rights arising out of such criminal li-
Bench ‘on the sole question’ whether the Bhopal Act is ability. This aspect is necessary to be reiterated on the
ultra vires or not, it is not possible by virtue of that order question of validity of the Act.
to go into the question whether the settlement is valid or
liable to be set aside as prayed for in the prayers in these 90. We have set out the language and the purpose of the
applications. Act, and also noted the meaning of the expression ‘claim’
and find that the Act was to secure the claims connected
89. The provisions of the Act have been noted and the with or arising out of the disaster so that these claims
rival contentions of the parties have been set out before. might be dealt with speedily, effectively, equitably and
It is, however, necessary to reiterate that the Act does to the best advantage of the claimants. In our opinion,
not in any way circumscribe the liability of the UCC, Clause (b) of Section 2 includes all claims of the victims
UCIL or even the Government of India or government arising out of and connected with the disaster for com-
of Madhya Pradesh if they are jointly or severally liable. pensation and damages or loss of life or personal injury
This follows from the construction of the Act from the or loss to the business and flora and fauna. What, how-
language that is apparent. The context and background ever, is the extent of liability, is another question. This
do not indicate to the contrary. Counsel for the victims Act does not purport to or even to deal with the extent of
plead that that is so. The learned Attorney General ac- liability arising out of the said gas leak disaster. Hence,
cepts that position. The liability of the Government is, it would be improper or incorrect to contend as did Ms
however, disputed. This Act also does not deal with any Jaising, Mr. Garg and other learned counsel appearing
question of criminal liability of any of the parties con- for the victims, that the Act circumscribed the liability -
cerned. On an appropriate reading of the relevant provi- criminal, punitive or absolute of the parties in respect of
sions of the Act, it is apparent that the criminal liability the leakage. The Act provides for a method or procedure
arising out of Bhopal gas leak disaster is not the subject- for the establishment and enforcement of that liability.
matter of this Act and cannot be said to have been in any Good deal of argument was advanced before this Court
way affected, abridged or modified by virtue of this Act. on the question that the settlement has abridged the li-
This was the contention of learned counsel on behalf of ability and this Court has lost the chance of laying down
the victims. It is also the contention of the learned Attor- the extent of liability arising out of disaster like the
ney General. In our opinion, it is the correct analysis and Bhopal gas leak disaster. Submissions were made that
consequence of the relevant provisions of the Act. Hence, we should lay down clearly the extent of liability arising
the submissions made on behalf of some of the victims out of these types of disasters and we should further hold
that the Act was bad as it abridged or took away the vic- that Act abridged such liability and as such curtailed the
tims right to proceed criminally against the delinquent, rights of the victims and was bad on that score. As men-
be it UCC or UCIL or jointly or severally the Govern- tioned hereinbefore, this is an argument under a miscon-
ment of India, Government of Madhya Pradesh or Mr. ception. The Act does not in any way except to the ex-
Arjun Singh, the erstwhile Chief Minister of Madhya tent indicated in the relevant provisions of the Act cir-
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CHARAN L AL SAHU V U NION OF INDIA
cumscribe or abridge the extent of the rights of the vic- v. Fletcher (supra) evolved in the 19th century at a time
tims so far as the liability of the delinquents are con- when all the developments of science and technology
cerned. Whatever are the rights of the victims and what- had not taken place, and the same cannot afford any guid-
ever claims arise out of the gas leak disaster for compen- ance in evolving any standard of liability consistent with
sation, personal injury, loss of life and property, suffered the constitutional norms and the needs of the present day
or likely to be sustained or expenses to be incurred or economy and social structure. In a modern industrial
any other loss are covered by the Act and the Central society with highly developed scientific knowledge and
Government by operation of Section 3 of the Act has technology where hazardous or inherently dangerous in-
been given the exclusive right to represent the victims in dustries are necessary to be carried on as part of the de-
their place and state. By the Act, the extent of liability is velopmental process, Courts should not feel inhibited by
not in any way abridged and, therefore, if in case of any this rule merely because the new law does not recognize
industrial disaster like the Bhopal gas leak disaster, there the rule of strict and absolute liability in case of an en-
is right in victims to recover damages or compensation terprise engaged in hazards and dangerous activity. This
on the basis of absolute liability, then the same is not in Court noted that law has to grow in order to satisfy the
any manner abridged or curtailed. needs of the fast changing society and keep abreast with
the economic developments taking place in the country.
91. Over 120 years ago Rylands v. Fletcher (1868) 3 Law cannot afford to remain static. This Court reiterated
HL 330 was decided in England. There A, was the lessee there that if it is found necessary to construct a new prin-
of certain mines, B, was the owner of a mill standing on ciple of liability to deal with an unusual situation which
land adjoining that under which the mines were worked. has arisen and which is likely to arise in future on ac-
B, desired to construct a reservoir, and employed com- count of hazardous or inherently dangerous industries
petent persons, such as engineers and a contractor to which are concomitant to an industrial economy, the
construct it. A had worked his mines up to a spot where Court should not hesitate to evolve such principle of li-
there were certain old passages of disused mines; these ability merely because it has not been so done in Eng-
passages were connected with vertical shafts which com- land. According to this Court, an enterprise which is en-
municated with the land above, and which had also been gaged in a hazardous or inherently dangerous industry
out of use for years, and were apparently filled with marl which poses potential threat to the health and safety of
and the earth of the surrounding land. No care had been the persons working in the factory and residing in the
taken by the engineer or the contractor to block up these surrounding areas owes an absolute and non-delegable
shafts, and shortly after water had been introduced into duty to the community to ensure that no harm results to
the reservoir it broke through some of the shafts, flowed anyone. The enterprise must be held to be under the ob-
through the old passage and flooded A’s mine. It was ligation to provide that the hazardous or inherently dan-
held by the House of Lords in England there where the gerous activity in which it is engaged must be conducted
owner of land, without wilfulness or negligence, uses with the highest standards of safety and if any harm re-
his land in the ordinary manner of its use, though mis- sults to anyone on account of an accident in the opera-
chief should thereby be occasioned to his neighbour, he tion of such activity resulting, for instance, in escape of
will not be liable in damages. But if he brings upon his toxic gas the enterprise is strictly and absolutely liable
land anything which would not naturally come upon it, to compensate all those who were affected by the acci-
and which is in itself dangerous, and may become mis- dent as part of the social cost for carrying on such activ-
chievous if not kept under proper control, though in so ity, regardless of whether it is carried on carefully or not.
doing he may act without personal wilfulness or negli- Such liability is not subject to any of the exceptions which
gence, he will be liable in damages for any mischief operate vis-avis the tortious principle of strict liability
thereby occasioned. In the background of the facts it was under the rule in Rylands v. Fletcher. If the enterprise is
held that A was entitled to recover damages from B, in permitted to carry on a hazardous or dangerous activity
respect of the injury. The question of liability was high- for its profit, the law must presume that such permission
lighted by this Court in M.C. Mehta’s case (supra) where is conditional on the enterprise absorbing the cost of any
a Constitution Bench of this Court had to deal with the accident arising on account of such activity as an appro-
rule of strict liability. This Court held that the rule in priate item of its overheads. The enterprise alone has the
Rylands v. Fletcher (supra) laid down a principle that if resources to discover and guard against hazards and to
a person who brings on his land and collects and keeps provide warning against potential hazards. This Court
there anything likely to do harm and such thing escapes reiterated that the measure of compensation in these kinds
and does damage to another, he is liable to compensate of cases must be correlated to the magnitude and capac-
for the damage caused. This rule applied only to non- ity of the enterprise because such compensation must
natural user of the land and does not apply to things natu- have a deterrent effect. The larger and more prosperous
rally on the land or where the escape is due to an act of the enterprise, the greater must be the amount of com-
God and an act of a stranger or the default of the person pensation payable by it for the harm caused on account
injured or in certain cases where there is a statutory au- of an accident in the carrying on of the hazardous or in-
thority. There, this Court observed that the rule in Rylands herently dangerous activity by the enterprise. The deter-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
mination of actual damages payable would depend upon the award of exemplary damages was considered to be
various facts and circumstances of the particular case. justifiable. Awards must not only, it is said, compensate
the parties but also deter the wrong doers and others from
92. It was urged before us that there was an absolute similar conduct in future. The question of awarding ex-
and strict liability for an enterprise which was carrying emplary or deterrent damages is said to have often con-
on dangerous operations with gases in this country. It fused civil and criminal functions of law. Though it is
was further submitted that there was evidence on record considered by many that it is a legitimate encroachment
that sufficient care and attention had not been given to of punishment in the realm of civil liability, as it oper-
safeguard against the dangers of leakage and protection ates as a restraint on the transgression of law which is
in case of leakage. Indeed, the criminal prosecution that for the ultimate benefit of the society. Perhaps, in this
was launched against the Chairman of Union Carbide case, had the action proceeded, one would have realized
Shri Warren Anderson and others, as indicated before, that the fall out of this gas disaster might have been for-
charged them along with the defendants in the suit with mulation of a concept of damages, blending both civil
delinquency in these matters and criminal negligence in and criminal liabilities. There are, however, serious dif-
conducting the toxic gas operations in Bhopal. As in the ficulties in evolving such an actual concept of punitive
instant adjudication, this Court is not concerned with the damages in respect of a civil action which can be inte-
determination of the actual extent of liability, we will grated and enforced by the judicial process. It would have
proceed on the basis that the law enunciated by this court raised serious problems of pleading, proof and discov-
in M.C. Mehta’s case (AIR 1987 SC 1086) (supra) is the ery, and interesting and challenging as the task might
decision upon the basis of which damages will be pay- have been, it is still very uncertain how far decision based
able to the victims in this case. But then the practical on such a concept would have been a decision according
question arises: What is the extent of actual damages to ‘due process’ of law acceptable by international stand-
payable, and how would the quantum of damages be ards. There were difficulties in that attempt. But as the
computed? Indeed, in this connection, it may be appro- provisions stand these considerations do not make the
priate to refer to the order passed by this Court on 3rd Act constitutionally invalid. These are matters on the
May, 1989 giving reasons why the settlement was ar- validity of settlement. The Act, as such does not abridge
rived at the figure indicated. This Court had reiterated or curtail damage or liability whatever that might be. So
that it had proceeded on certain prima facie undisputed the challenge to the Act on the ground that there has been
figures of death and substantially compensating personal curtailment or deprivation of the rights of the victims
injury. This Court has referred to the fact that the High which is unreasonable in the situation is unwarranted and
Court had proceeded on the broader principle in M.C. cannot be sustained.
Mehta’s case (supra) and on the basis of the capacity of
the enterprise because the compensation must have de- 93. Mr. Garg tried to canvas before us the expanding of
terrent effect. On that basis the High Court had proceeded horizons of human rights. He contended that the con-
to estimate the damages on the basis of Rs. 2 lakhs for duct of the multinational corporations dealing with dan-
each case of death and of total permanent disability, Rs. gerous gases for the purpose of development specially
1 lakh for each case of partial permanent disability and in the conditions prevailing under the Third World coun-
Rs. 50,000/- for each case of temporary partial disabil- tries requires close scrutiny and vigilance on the part of
ity. In this connection, the controversy as to what would emerging nations. He submitted that unless courts are
have been the damages if the action had proceeded, is alert and active in preserving the rights of the individu-
another matter. Normally, in measuring civil liability, the als and in enforcing criminal and strict liability and in
law has attached more importance to the principle of setting up norms compelling the Government to be more
compensation than that of punishment. Penal redress, vigilant and enforcing the sovereign will of the people
however, involves both compensation to the person in- of India to oversee that such criminal activities which
jured and punishment as deterrence. These problems were endanger even for the sake of developmental work
highlighted by the House of Lords in England in Rookes economy and progress of the country, the health and hap-
v. Barnard, 1964 AC 1129, which indicate the difference piness of the people and damage the future prospects of
between aggravated and exemplary damages. Salmond health, growth and effect and pollute the environment,
on the Law of Torts, 15th Edition at p. 30 emphasizes should be curbed and, according to him, these could only
that the function of damages is compensation rather than be curbed by insisting through the legal adjudication,
punishment, but punishment cannot always be ignored. punitive and deterrent punishment in the form of dam-
There are views which are against exemplary damages ages. He also pleaded that norms should be set up indi-
on the ground that these infringe in principle the object cating how these kinds of dangerous operations are to be
of law of torts, namely, compensation and not punish- permitted under conditions of vigilance and surveillance.
ment and these tend to impose something equivalent to a While we appreciate the force of these arguments, and
fine in criminal law without the safeguards by the crimi- endorse his plea that norms and deterrence should be
nal law. In Rookes v. Barnard (supra), the House of Lords aspired for, it is difficult to correlate that aspect with the
in England recognized three classes of cases in which present problem in this decision.
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CHARAN L AL SAHU V U NION OF INDIA
94. We do reiterate, as mentioned in the Universal Dec- compensation. The victims, it has been asserted, have
laration of Human Rights that people are born free and been denied access to justice. It is a great deprivation, it
the dignity of the persons must be recognized and an was urged. It was contended that the procedure evolved
effective remedy by competent Tribunal is one of the under the Act for the victims is peculiar and having good
surest method of effective remedy. If, therefore, as a re- deal of disadvantages for the victims. Such special dis-
sult of this tragedy new consciousness and awareness on advantageous procedure and treatment is unequal treat-
the part of the people of this country to be more vigilant ment, it was suggested. It was, therefore, violative of Art.
about measures and the necessity of ensuring more strict 14 of the Constitution, that is the argument advanced.
vigilance for permitting the operations of such danger-
ous and poisonous gases dawns, then perhaps the tragic 98. The Act does provide a special procedure in respect
experience of Bhopal would not go in vain. of the rights of the victims and to that extent the Central
Government takes upon itself the rights of the victims. It
95. The main question, however, canvassed by all is a special Act providing a special procedure for a kind
learned Counsel for the victims was that so far as the Act of special class of victims. In view of the enormity of
takes away the right of the victims to fight or establish the disaster the victims of the Bhopal gas leak disaster,
their own rights, it is a denial of access to justice, and it as they were placed against the multinational and a big
was contended that such denial is so great a deprivation Indian corporation and in view of the presence of for-
of both human dignity and right to equality that it cannot eign contingency lawyers to whom the victims were ex-
be justified because it would be affecting right to life, posed, the claimants and victims can legitimately be de-
which again cannot be deprived without a procedure es- scribed as a class by themselves different and distinct,
tablished by law which is just, fair and reasonable. sufficiently separate and identifiable to be entitled to
special treatment for effective, speedy, equitable and best
96. On this aspect, Shri Shanti Bhushan tried to urge advantageous settlement of their claims. There indubita-
before us that Sections 3 and 4 of the Act, insofar as bly is differentiation. But this differentiation is based on
these enjoin and empower the Central Government to a principle which has rational nexus with the aim intended
institute or prosecute proceedings was only an enabling to be achieved by its differentiation. The disaster being
provision for the Central Government and not depriving unique in its character and in the recorded history of in-
or disabling provisions for the victims. Ms. Jaisingh dustrial disasters situated as the victims were against a
sought to urge in addition, that in order to make the pro- mighty multinational with the presence of foreign con-
visions constitutionally valid, we should eliminate the tingency lawyers looming on the scene, in our opinion,
concept of exclusiveness to the Central Government and there were sufficient grounds for such differentiation and
give the victims right to sue along with the Central Gov- different treatment. In treating the victims of the gas leak
ernment. We are unable to accept these submissions. disaster differently and providing them a procedure,
which was just, fair, reasonable and which was not un-
97. In our opinion, Sections 3 and 4 are categorical and warranted or unauthorized by the Constitution. Article
clear. When the expression is explicit, the expression is 14 is not breached. We are, therefore, unable to accept
conclusive, alike in what it says and in what it does not this criticism of the Act.
say. These give to the Central Government an exclusive
right to act in place of the persons who are entitled to 99. The second aspect canvassed on behalf of the vic-
make claim or have already made claim. The expression tims is that the procedure envisaged is unreasonable and
‘exclusive’ is explicit and significant. The exclusivity as such not warranted by the situation and cannot be
cannot be withheld down or watered down as suggested treated as a procedure which is just, fair and reasonable.
by counsel. The said expression must be given its full The argument has to be judged by the yardstick, as men-
meaning and extent. This is corroborated by the use of tioned hereinbefore, enunciated by this Court in State of
the expression ‘claim’ for all purposes. If such duality of Madras v. V.G. Rao (AIR 1952 SC 196) (supra). Hence,
rights are given to the Central Government along with both the restrictions or limitations on the substantive and
the victims in instituting or proceeding for the realiza- procedural rights in the impugned legislation will have
tion or the enforcement of the claims arising out of to be judged from the point of view of the particular Stat-
Bhopal gas leak disaster, then that would be so cumber- ute in question. No abstract rule or standard of reasona-
some that it would not be speedy, effective or equitable bleness can be applied. That question has to be judged
and would not be the best or more advantageous proce- having regard to the nature of the rights alleged to have
dure for securing the claims arising out of the leakage. been infringed in this case, the extent and urgency of the
In that view of the matter and in view of the language evil sought to be remedied, disproportionate imposition,
used and the purpose intended to be achieved, we are prevailing conditions at the time, all these facts will have
unable to accept this aspect of the arguments advanced to be taken into consideration. Having considered the
on behalf of the victims. It was then contended by the background, the plight of the impoverished, the urgency
procedure envisaged by the Act, the victims have been of the victims’ need, the presence of the foreign contin-
deprived that denied their rights and property to fight for gency lawyers, the procedure of settlement in USA in
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mass action, the strength for the foreign multinationals, vested in the Central Government. The victims have been
the nature of injuries and damages, and the limited but divested because the victims were disabled. The disa-
significant right of participation of the victims as con- blement of the victims vis-a-vis their adversaries in this
templated by S. 4 of the Act, the Act cannot be con- matter is a self-evident factor. If that is the position then,
demned as unreasonable. in our opinion, even if the strict application of the ‘pa-
rens patriae’ doctrine is not in order, as a concept it is a
100. In this connection, the concept of ‘parens patriae’ guide. The jurisdiction of the State’s power cannot be
in jurisprudence may be examined. It was contended by circumscribed by the limitations of the traditional con-
the learned Attorney General that the State had taken upon cept of parens patriae. Jurisprudentially, it could be uti-
itself this onus to effectively come in as parens patriae. lized to suit or alter or adapt itself in the changed cir-
We have noted the long line of Indian decisions where, cumstances. In the situation in which the victims were,
though in different contexts, the concepts of State as the the State had to assume the role of a parent protecting
parent of people who are not quite able to or competent the rights of the victims who must come within the pro-
to fight for their rights or assert their rights, have been tective umbrella of the State and the common sovereignty
utilized. It was contended that the doctrine of parens of the Indian people. As we have noted the Act is an
patriae cannot be applicable to the victims. How the con- exercise of the sovereign power of the State. It is an ap-
cept has been understood in this country as well as in propriate evolution of the expression of sovereignty in
America has been noted. Legal dictionaries have been the situation that had arisen. We must recognize and ac-
referred to as noted before. It was asserted on behalf of cept it as such.
the victims by learned Counsel that the concept of ‘pa-
rens patriae’ can never be invoked for the purpose of suits 101. But this right and obligation of the State has an-
in domestic jurisdiction of any country. This can only be other aspect. Shri Shanti Bhushan has argued and this
applied in respect of the claims out of the country in argument has also been adopted by other learned Coun-
foreign jurisdiction. It was further contended that this sel appearing for the victims that with the assumption
concepts of ‘parens patriae’ can only be applied in case by the State of the jurisdiction and power as a parent to
of persons who are under disability and would not be fight for the victims in the situation there is an incum-
applicable in respect of those who are able to assert their bent obligation on the State, in the words of Judges
own rights. It is true that victims or their representatives Keenan, ‘as a matter of fundamental human decency’ to
are sui generis and cannot as such due to age, mental maintain the victims until the claims are established and
capacity or other reason not, legally incapable for suing realized from the foreign multinationals. The major in-
or pursuing the remedies for the rights yet they are at a articulate premise apparent from the Act and the scheme
tremendous disadvantage in the broader and comprehen- and the spirit of the Act is that so long as the rights of the
sive sense of the term. These victims cannot be consid- victims are prosecuted the State must protect and pre-
ered to be any match to the multinational companies or serve the victims. Otherwise the object of the Act would
the Government with whom in the conditions that the be defeated, its purpose frustrated. Therefore, continu-
victims or their representatives were after the disaster ance of the payments of the interim maintenance for the
physically, mentally, financially, economically and also continued sustenance of the victims is an obligation aris-
because of the position of litigation would have to con- ing out of State’s assumption of the power and tempo-
tend. In such a situation of predicament the victims can rary deprivation of the rights of the victims and divesti-
legitimately be considered to be disabled. They were in ture of the rights of the victims to fight for their own
no position by themselves to look after their own inter- rights. This is the only reasonable interpretation which
ests effectively or purposefully. In that background, they is just, fair and proper. Indeed, in the language of the Act
are people who needed the State’s protection and should there is support for this interpretation. Section 9 of the
come within the umbrella of State’s sovereignty to as- Act gives power to the Central Government to frame by
sert, establish and maintain their rights against the wrong notification, a scheme for carrying into effect the pur-
doers in this mass disaster. In that perspective, it is poses of the Act. Sub-section (2) of Section 9 provides
jurisprudentially possible to apply the principle of pa- for the matters for which the scheme may provide.
rens patriae doctrine to the victims. But quite apart from Amongst others, clause (d) of Section 9(2) provides for
that, it has to be borne in mind that in this case the State creation of a fund for meeting expenses in connection
is acting on the basis of the Statute itself. For the author- with the administration of the scheme and of the provi-
ity of the Central Government to sue for and on behalf sions of the Act; and clause (e) of Section 9(2) covers
of or instead in place of the victims, no other theory, the amounts which the Central Government “may after
concept or any jurisprudential principle is required than due appropriation made by parliament by law in that
the Act itself. The Act empowers and substitutes the Cen- behalf, credit to the fund referred to in clause (d) and
tral Government. It displaces the victims by operation of any other amounts which may be credited to such fund”.
Section 3 of the Act and substitutes the Central Govern- Clause (f) of Section 9(2) speaks of the utilization, by
ment in its place. The victims have been divested of their way of disbursal (including apportionment) or otherwise,
rights to sue and such claims and such rights have been of any amounts received in satisfaction of the claims.
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These provisions are suggestive but not explicit. Clause meat can be put into the skeleton of the act making it
(b) of Section 10 which provides that in disbursing un- meaningful and purposeful. The Act must, therefore, be
der the scheme the amount received by way of compen- so read. This approach to the interpretation of the Act
sation or damages in satisfaction of a claim as a result of can legitimately be called the ‘constructive intuition’
the adjudication or settlement of the claim by a Court or which, in our opinion, is a permissible mode of viewing
other authority, deduction shall be made from such the Acts of Parliament. The freedom to search for ‘the
amount of the sums, if any, paid to the claimant by the spirit of the Act’ or the quantity of the mischief at which
Government before the disbursal of such amount. The it is aimed (both synonymous for the intention of the
scheme framed is also significant. Clause 10 of the Parliament) opens up the possibility of liberal interpre-
Scheme provides for the claims and relief funds and in- tation “that delicate and important branch of judicial
cludes disbursal of amounts as relief including interim power, the concession of which is dangerous, the denial
relief to persons affected by the Bhopal gas leak disaster ruinous”. Given this freedom it is a rare opportunity
and Clause 11(1) stipulates that disbursal of any amounts though never to be misused and challenge for the Judges
under the scheme shall be made by the Deputy Commis- to adopt and give meaning to the Act, articulate and inar-
sioner to each claimant through credit in a bank or postal ticulate, and thus translate the intention of the parlia-
saving account, stressing that the legislative policy un- ment and fulfill the object of the Act. After all, the act
derlined the Bhopal Act contemplated payment of in- was passed to give relief to the victims who, it was
terim relief till such time as the Central Government was thought, were unable to establish their own rights and
able to recover from the Union Carbide full amount of fight for themselves. It is common knowledge that the
compensation from which the interim reliefs already paid victims were poor and impoverished. How could they
were to be deducted from the amount payable to them survive the long ordeal of litigation and ultimate execu-
for the final disbursal. The Act should be construed as tion of the decree or the orders unless provisions be made
creating an obligation on the Central Government to pay for their sustenance and maintenance, especially when
interim relief as the Act deprives the victims of formal they have been deprived of the right to fight for these
and immediate right of obtaining compensation from the claims themselves? We, therefore, read the Act accord-
Union Carbide. Had the Act not been enacted, the vic- ingly.
tims could have and perhaps would have been entitled
not only to sue the Union Carbide themselves, but also 102. It was, then, contended that the Central Government
to enter into settlement or compromise of some sort with was not competent to represent the victims. This argu-
them. The provisions of the Act deprived the victims of ment has been canvassed on various grounds. It has been
that legal right and opportunity, and that deprivation is urged that the Central Government owns 22% share in
substantial deprivation because upon immediate relief UCIL and as such there is a conflict of interest between
depends often the survival of these victims. In that back- the Central Government and the victims, and on that
ground, it is just and proper that this deprivation is only ground the former is disentitled to represent the latter in
to be justified if the Act is read with the obligation of their battle against UCC and UCIL. A large number of
granting interim relief or maintenance by the Central authorities on this aspect were cited. However, it is not
Government until the full amount of the dues of the vic- necessary in the view we have taken to deal with these
tims is realized from the Union Carbide after adjudica- because factually the Central Government does not own
tion or settlement and then deducting therefrom the in- any share in UCIL. These are the statutory independent
terim relief paid to the victims. As submitted by learned organizations, namely, Unit Trust of India and Life In-
attorney General, it is true that there is no actual expres- surance Corporation, who own 20 to 22% share in UCIL.
sion used in the Act itself which expressly postulates or The Government has certain amount of say and control
indicates such a duty or obligation under the Act. Such in LIC and UTI. Hence, it cannot be said, in our opinion,
an obligation is, however, inherent and must be the basis that there is any conflict of interest in the real sense of
of properly construing the spirit of the Act. In our opin- matter in respect of the claims of Bhopal gas leak disas-
ion, this is the true basis and will be in consonance with ter between the Central Government and the victims.
the spirit of the Act. It must be, to use the well-known Secondly, in a situation of this nature, the Central Gov-
phrase ‘the major inarticulate premise’ upon which ernment is the only authority which can pursue and ef-
though not expressly stated, the Act proceeds. It is on fectively represent the victims. There is no other organi-
this promise or premise that the State would be justified zation or Unit which can effectively represent the vic-
in taking upon itself the right and obligation to proceed tims. Perhaps, theoretical, it might have been possible to
and prosecute the claim and deny access to the courts of constitute another independent statutory body by the
law to the victims on their own. If it is only so read, it Government under its control and supervision in whom
can only be held to be constitutionally valid. It has to be the claim of the victims might have been vested and sub-
borne in mind that the language of the Act does not mili- stituted and that Body could have been entrusted with
tate against this construction but on the contrary, Sec- the task of agitating or establishing the same claims in
tions 9, 10 and the scheme of the Act suggest that the the same manner as the Central Government has done
Act contains such an obligation. If it is so read, then only under the Act. But the fact that has not been done, in our
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
opinion does not in any way affect the position. Apart loss of life and damage to property on an extensive scale.
from that, lastly, in our opinion, this concept that where
there is a conflict of interest, the person having the con- 104. In this context, the Act has to be understood that it
flict should not be entrusted with the task of this nature is in respect of the person responsible, being the person
does not apply in the instant situation. In the instant case, in-charge of the UCIL and the parent company UCC.
no question of violation of the principle of natural jus- This interpretation of the Act is further strengthened by
tice arises, and there is no scope for the application of the fact that a “claimant” has been defined in clause (c)
the principle that no man should be a Judge in his own of Section 2 as a person who is entitled to make a claim
cause. The Central Government was not judging any and the expression “person” in Section 2(e) includes the
claim, but was fighting and advancing the claims of the Government. Therefore, the Act proceeded on the as-
victims. In those circumstances, it cannot be said that sumption that the Government could be a claimant be-
there was any violation of the principles of natural jus- ing a person as such. Furthermore, this construction and
tice and such entrustment to the Central Government of the perspective of the Act is strengthened if a reference
the right to ventilate for the victims was improper or bad. is made to the debate both in Lok Sabha and Rajya Sabha
The adjudication would be done by the Courts, and there- to which references have been made.
fore there is no scope of the violation of any principle of
natural justice. 105. The question whether there is scope for the Union
of India being responsible or liable as a joint tort-feasor
103. Along with this submission, the argument was that is a difficult and different question. But even assuming
the power and the right given to the Central Government that it was possible that the Central Government might
to fight for the claims of the victims is unguided and be liable in a case of this nature, the learned Attorney
uncanalised. This submission cannot be accepted. Leaned General was right in contending that it was only proper
Attorney General is right that the power conferred on that the Central Government should be able and author-
the Central Government is not uncanalised. The power ized to represent the victims. In such a situation, there
is circumscribed by the purpose of the Act. If there is will be no scope of the violation of the principles of natu-
any improper exercise or transgression of the power then ral justice. The doctrine of necessity would be applica-
the exercise of that power can be called in question and ble in a situation of this nature. The doctrine has been
set aside, but the Act cannot be said to be violative of the elaborated, in Halsbury’s Laws of England; 4th Edition,
rights of the victims on that score. We have noted the p. 89, paragraph 75, where it was reiterated that even if
relevant authorities on the question that how power all the members of the Tribunal competent to determine
should be exercised is different and separate from the a matter were subject to disqualification, they might be
question whether the power is valid or not. The next ar- authorized and obliged to hear that matter by virtue of
gument on behalf of the victims was that there was con- the operation of the common law doctrine of necessity.
flict of interest between the victims and the Government An adjudicator who is subject to disqualification on the
viewed from another aspect of the matter. It has been ground of bias or interest in the matter which he has to
urged that the Central Government as well as the Gov- decide may in certain circumstances be required to adju-
ernment of Madhya Pradesh along with the erstwhile dicate if there is no other person who is competent or
Chief Minister of the State of Madhya Pradesh Shri Arjun authorized to be adjudicator or if a quorum cannot be
Singh were guilty of negligence, malfeasance and non formed without him or if no other competent Tribunal
feasance, and as such were liable for damages along with can be constituted. In the circumstances of the case, as
Union Carbide and UCIL. In other words, it has been mentioned hereinbefore, the Government of India is only
said that the Government of India and the Government capable to represent the victims as a party. The adjudi-
of Madhya Pradesh along with Mr. Arjun Singh are joint cation, however, of the claims would be done by the
tort-feasors and joint wrong doers. Therefore, it was urged Court. In those circumstances, we are unable to accept
that there is conflict of interest in respect of the claims the challenge on the ground of the violation of princi-
arising ‘out of the gas leak disaster between the Govern- ples of natural justice on this score. The learned Attor-
ment of India and the victims and in such a conflict, it is ney General, however, sought to advance, as we have
improper, rather illegal and unjust to vest in the Govern- indicated before, his contention on the ground of de facto
ment of India the rights and claims of the victims. As validity. He referred to certain decisions. We are of the
noted before, the Act was passed in a particular back- opinion that this principle will not be applicable. We are
ground and, in our opinion, if read in that background, also not impressed by the plea of the doctrine of bona
only covers claims against Union Carbide or UCIL. fide representation of the interests of victims in all these
“Bhopal gas leak disaster” or “disaster” has been defined proceedings. We are of the opinion that the doctrine of
in clause (a) of Section 2 as the occurrence on the 2nd bona fide representation would not be quite relevant and
and 3rd days of December, 1984 which involved the re- as such the decisions cited by the learned Attorney Gen-
lease of highly noxious and abnormally dangerous gas eral need not be considered.
from a plant in Bhopal (being a plant of the UCIL, a
subsidiary of the UCC of U.S.A.) and which resulted in 106. There is, however, one other aspect of the matter
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CHARAN L AL SAHU V U NION OF INDIA
which requires consideration. The victims can be divested constitutional obligations as the parent and guardian of
of their rights i.e. these can be taken away from them the victims who in the situation as placed need the um-
provided those rights of the victims are ensured to be brella of protection. Thus, the State has the power and
established and agitated by the Central Government fol- jurisdiction and for this purpose unless the Act is other-
lowing the procedure which would be just, fair and rea- wise unreasonable or violative of the constitutional pro-
sonable. Civil Procedure Code is the guide which guides visions, no question of giving a hearing to the parties for
civil proceedings in this country and in other countries taking over these rights by the State arises. For legisla-
procedure akin to Civil Procedure Code [sic]. Hence, tion by the Parliament, no principle of natural justice is
these have been recognized and accepted as being in con- attracted provided such legislation is within the compe-
sonance with the fairness of the proceedings and in con- tence of the legislature, which indeed the present Act is
formity with the principles of natural justice. Therefore, within the competence of the parliament. We are in agree-
the procedure envisaged under the Act has to be judged ment with the submission of the learned Attorney Gen-
whether it is so consistent. The Act, as indicated before, eral that Section 3 makes the Central Government the
has provided the procedure under Sections 3 and 4. Sec- dominus litus and it has the carriage of the proceedings,
tion 11 provides that the provisions of the Act and of any but that does not solve the problem of what procedure the
Scheme framed thereunder shall have effect notwithstand- proceedings should be carried.
ing anything inconsistent therewith contained in any en-
actment other than the Act or any instrument having ef- 107. The next aspect is that Section 4 of the Act, which,
fect by virtue of any enactment other than the Act. Hence, according to the learned Attorney General gives limited
if anything is inconsistent with the Act for the time being, rights to the victims in the sense that it obliges the Cen-
it will not have force and the Act will override those pro- tral Government to “have due regard to any matters which
visions to the extent it does. The Act has not specifically such person may require to be urged with respect to his
contemplated any procedure to be followed in the action claim and shall, if such person so desires, permit at the
to be taken pursuant to the powers conferred under Sec- expense of such person, a legal practitioner of his choice
tion 3 except to the extent indicated in Section 4 of the to be associated in the conduct of any suit or other pro-
Act. Section 5, however, authorizes the Central Govern- ceeding relating to his claim”. Therefore, it obliges the
ment to have the powers of a Civil Court for the purpose Central Government to have ‘due regard’ to any matters,
of discharging the functions pursuant to the authority and it was urged on behalf of the victims that this should
vested under Sections 3 and 4 of the Act. There is no ques- be read in order to make the provisions constitutionally
tion of Central Government acting as a Court in respect valid as providing that the victims will have a say in the
of the claims which it should enforce for or on behalf or conduct of the proceedings and as such must have an
instead of the victims of the Bhopal gas leak disaster. In opportunity of knowing what is happening either by in-
this connection, it is necessary to note that it was submit- structing or giving opinions to the Central Government
ted that the Act, so far as it deals with the claims of the and/or providing for such directions as to settlement and
victims should be read in conformity with Civil Proce- other matters. In other words, it was contended on be-
dure Code and/or with the principles of natural justice; half of the victims that the victims should be given no-
and unless the provisions of the Act are so read it would tice of the proceedings and thereby an opportunity, if
be violative of Arts. 14 and 21 of the Constitution in the they so wanted, to advance their view; and that to make
sense that there will be deprivation of rights to life and the provisions of Section 4 meaningful and effective
liberty without following a procedure which is just, fair unless notice was given to victim, disabled as he is, the
and reasonable. That is the main submission and conten- assumption upon which the Act has been enacted, could
tion of the different counsel for the victims who have ap- not come and make suggestion in the proceedings. If the
peared. The different view points from which this con- victims are not informed and given no opportunity, the
tention has been canvassed have been noted before. On purpose of Section 4 cannot be attained.
the other hand, on behalf of the Government, the learned
Attorney General has canvassed before us that there were 108. On the other hand, the learned Attorney general
sufficient safeguards consistent with the principles of natu- suggested that Section 4 has been complied with, and
ral justice within this Act and beyond what has been pro- contended that the victims had notice of the proceed-
vided for in a situation for which the Act was enacted, ings. They had knowledge of the suit in America, and of
nothing more could be provided and further reading down the order passed by Judge Keenan. The private plaintiffs
the provisions of the Act in the manner suggested would who had gone to America were represented by foreign
defeat the purpose of the Act. The aforesaid Section 3 contingency lawyers who knew fully well what they were
provides for the substitution of the Central Government doing and they had also joined the said suit along with
with the right to represent and act in place of (whether the Government of India. Learned Attorney General sub-
within or outside India) every person who has made, or is mitted that Section 4 of the Act clearly enabled the vic-
entitled to make, a claim in respect of the disaster. The tims to exercise their right of participation in the pro-
State has taken over the rights and claims of the victims ceedings. According to him, there was exclusion of vic-
in the exercise of sovereignty in order to discharge the tims from the process of adjudication but a limited par-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
ticipation was provided and beyond that participation no statute would be construed as excluding the audi alteram
further participation was warranted and no further no- partam rule at the pre-decisional stage. If the statute con-
tice was justified either by the provisions of the Act as ferring the power is silent with regard to the giving of a
read with the constitutional requirements or under the pre-decisional hearing to the person affected the admin-
general principles of natural justice. He submitted that istrative decision after post-decisional hearing was good.
the principles of natural justice cannot be put into straight-
jacket and their application would depend upon the par- 110. The principles of natural justice have been exam-
ticular facts and the circumstances of a situation. Ac- ined by this Court in Union of India v. Tulsi Ram Patel
cording to the learned Attorney General, in the instant (AIR 1985 SC 1416) (supra). It was reiterated, that the
case, the legislature had formulated the area where natu- principles of natural justice are not the creation of Arti-
ral justice could be applied, and up to what area or stage cle 14 of the Constitution. Article 14 is not the begetter
there would be association of the victims with the suit, of the principles of natural justice but their constitutional
beyond that no further application of any principle of guardian. The principles of natural justice consist, inter
natural justice was contemplated. alia, of the requirement that no man should be condemned
unheard. If, however, a legislation of a Statute expressly
109. The fact that the provisions of the principles of natu- or by necessary implication excludes the application of
ral justice have to be complied with is undisputed. This any particular principle of natural justice then it requires
is well settled by the various decisions of the Court. The close scrutiny by the Court.
Indian Constitution mandates that clearly, otherwise the
act and the actions would be violative of Article 14 of 111. It has been canvassed on behalf of the victims that
the Constitution and would also be destructive of Article the Code of Civil Procedure is an instant example of what
19(1)(g) and negate Article 21 of the Constitution by is a just, fair and reasonable procedure, at least the prin-
denying a procedure which is just, fair and reasonable. ciples embodied therein and the Act would be unreason-
See in this connection, the observations of this Court in able if there is exclusion of the victims to vindicate prop-
Maneka Gandhi’s case (AIR 1978 SC 597) (supra) and erly their views and rights. This exclusion may amount
Olga Tellis’ case (AIR 1986 SC 180) (supra). Some of to denial of justice. In any case, it has been suggested
these aspects were noticed in the decision of this Court and in our opinion, there is good deal of force in this
in Swadeshi Cotton Mills v. Union of India (AIR 1981 contention, that if a part of the claim for good reasons or
SC 818) (supra). That was a decision which dealt with bad is sought to be compromised or adjusted without at
the question of taking over of the industries under the least considering the views of the victims that would be
Industries (Development and Regulation) Act, 1951). The unreasonable deprivation of the rights of the victims.
question that arose was whether it was necessary to ob- After all, it has to be borne in mind that injustice con-
serve the rules of natural justice before issuing a notifi- sists in the sense in the minds of the people affected by
cation under Section 18A(a) of the Act. It was held by any act or inaction a feeling that their grievances, views
the majority of Judges that in the facts of that case there or claims have gone unheeded or not considered. Such a
had been non-compliance with the implied requirement feeling is in itself an injustice or a wrong. The law must
of the audi alteram partem rule of natural justice at the be so construed and implemented that such a feeling does
pre-decisional stage. The order in that case could be not generate among the people for whose benefit the law
struck down as invalid on that score but the Court found is made. Right to a hearing or representation before en-
that in view of the concession that a hearing would be tering into a compromise seems to be embodied in the
afforded to the company, the case was remitted to the due process of law understood in the sense the term has
Central Government to give a full, fair and effective hear- been used in the constitutional jargon of this country
ing. It was held that the phrase ‘natural justice’ is not though perhaps not originally intended. In this connec-
capable of static and precise definition. It could not be tion, reference may be made to the decision of the Court
imprisoned in the straight-jacket of a cast-iron formula. in Sangram Singh v. Election Tribunal, Kotah, (1955) 2
Rules of natural justice are not embodied rules. Hence, SCR 1: (AIR 1955 SC 425). The Representation of the
it was not possible to make an exhaustive catalogue of People Act, 1951 contains Section 90 and the procedure
such rules. This Court reiterated that audi alteram partem of Election Tribunals under the Act was governed by the
is a highly effective rule devised by the Courts to ensure said provision. Sub-section (2) of Section 90 provides
that a statutory authority arrives at a just decision and it that “Subject to the provisions of this act and of any rules
is calculated to act as a healthy check on the abuse or made thereunder, every election petition shall be tried
misuse of power. The rules of natural justice can operate by the Tribunal, as nearly as may be, in accordance with
only in areas not covered by any law validly made. The the procedure applicable under the Code of Civil Proce-
general principle as distinguished from an absolute rule dure, 1908 to the trial of suits”. Justice Bose speaking
of uniform application seems to be that where a statute for the Court said that it is procedure, something designed
does not in terms exclude this rule or prior hearing but to facilitate justice and further its ends, and cannot be
contemplates a post-decisional hearing amounting to a considered as a penal enactment for punishment or pen-
full review of the original order on merits then such a alties; not a thing designed to trip people up rather than
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CHARAN L AL SAHU V U NION OF INDIA
help them. It was reiterated that our laws of procedure 114. In view of the principles settled by this Court and
are grounded on the principle of natural justice which accepted all over the world, we are of the opinion that in
requires that men should not be condemned unheard, that a case of this magnitude and nature, when the victims
decisions should not be reached behind their backs, that have been given some say by Section 4 of the Act, in
proceedings that affect their lives and property should order to make that opportunity contemplated by Section
not continue in their absence and that they should not be 4 of the Act, meaningful and effective, it should be so
precluded from participating in them. Of course, there read that the victims have to be given an opportunity of
may be exceptions and where they are clearly defined making their representation before the Court comes to
these must be given effect to. But taken by and large, any conclusion in respect of any settlement. How that
and subject to that proviso, our laws of procedure should opportunity should be given, would depend upon the
be construed, wherever that is reasonably possible, in particular situation. Fair procedure should be followed
the light of that principle. At page 9 of the report, Justice in a representative mass tort action. There are instances
Bose observed as under: and some of these were also placed before us during the
hearing of these matters indicating how the Courts regu-
“But that a law of natural justice exists in the sense that late giving of the notice in respect of a mass action where
a party must be heard in a Court of law, or at any rate be large number of people’s views have to be ascertained.
afforded an opportunity to appear and defend himself, Such procedure should be evolved by the Court when
unless there is express provision to the contrary, is, we faced with such a situation.
think, beyond dispute. See the observations of the Privy
Council in Balakrishna Udayar v. Vasudeva Ayyar, ILR 115. The Act does not expressly exclude the application
40 Mad 793, 800: (AIR 1971 PC 71) and especially in of the Code of Civil Procedure. Section 11 of the Act
T.B. Barret v. African Products Ltd., AIR 1928 PC 261- provides the overriding effect indicating that anything
261, where Lord Buckmaster said “no forms or proce- inconsistent with the provisions of the Act in other law
dure should ever be permitted to exclude the presenta- including the Civil Procedure Code should be ignored
tion of a litigant’s defence”. Also Hari Vishnu’s case and the Act should prevail. Our attention was drawn to
which we have just quoted. the provisions of O.1, R. 8(4) of the Code. Strictly speak-
ing, O.1, R.8 will not apply to a suit or a proceeding
In our opinion, Wallace, J. was right in Venkatasubbiah under the Act. It is not a case of one having common
v. Lakshminarasimham, AIR 1925 Mad 1274, holding interest with others. Here the plaintiff, the Central Gov-
that “One cardinal principle to be observed in trials by a ernment has replaced and divested the victims.
Court obviously is that a party has a right to appear and
plead his cause on all occasions when that cause comes 116. Learned Attorney General submitted that as the pro-
on for hearing”, and that “it follows that a party should visions of the Code stood before 1976 Amendment, the
not be deprived of that right and in fact the Court has no High Courts had taken the view that hearing of the par-
option to refuse that right, unless the Code of Civil Pro- ties represented in the suit was not necessary, before com-
cedure deprives him of it”. promise. Further reference was made to proviso to O.
XXIII, R. 1. As in this case there is no question, in our
112. All civilized countries accept the right to be heard opinion, of abandonment as such of the suit or part of
as part of the due process of law where questions affect- the suit, the provisions of this Rule would also not strictly
ing their rights, privileges or claims are considered or apply. However, Order XXIII, Rule 3B of the Code is an
adjudicated. important and significant pointer and the principles be-
hind the said provision would apply to this case. The
113. In S.L. Kapoor v. Jagmohan, (1981) 1 SCR 746 at said Rule 3B provides that no agreement or compromise
p. 765: (AIR 1981 SC 136 at pp. 146-147), Chinnappa in a representative suit shall be entered into without the
Reddy, J. speaking for this Court observed that the con- leave of the Court expressly recorded in the proceed-
cept that justice must not only be done but must mani- ings; and sub-rule (2) of R. 3B enjoins that before grant-
festly be seen to be done is basic to our system. It has ing such leave the Court shall give notice in such man-
been reiterated that the principles of natural justice know ner as it may think fit in a representative action. Repre-
of no exlusionary rule dependent on whether it would sentative suit, again, has been defined under Explana-
have made any difference if natural justice had been ob- tion to the said Rule vide clause (d) as any other suit in
served. The non-observance of natural justice is itself which the decree passed may, by virtue of the provisions
prejudice to any man and proof of prejudice independ- of this Code or of any other law for the time being in
ently of proof of denial of natural justice is unnecessary force, bind any person who is not named as a party to the
and it has been said that it ill comes from a person who suit. In this case, indubitably the victims would be bound
has denied justice that the person who has been denied by the settlement though not named in the suit. This is a
justice, is not prejudiced. Principles of natural justice position conceded by all. If that is so, it would be a rep-
must, therefore, be followed. That is the normal require- resentative suit in terms of and for the purpose of R. 38,
ment. O. XXII of the Code. If the principles of this Rule are
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
the principles of natural justice then we are of the opin- proceedings. We are, however, unable to accept the po-
ion that the principles behind it would be applicable; and sition that the victims had notice of the nature contem-
also that Section 4 should be so construed in spite of the plated under the Act upon the underlying principle of
difficulties of the process of notice and other difficulties Order XXIII, R.32 of the Code. It is not enough to say
of making “informed decision making process cumber- that the victims must keep vigil and watch the proceed-
some”, as canvassed by the learned Attorney General. ing. One assumption under which the Act is justified is
that the victims were disabled to defend themselves in
117. In our opinion, the constitutional requirements, the an action of this type. If that is so, then the Court cannot
language of the Section, the purpose of the Act and the presume that the victims were a lot capable and informed
principles of natural justice lead us to this interpretation to be able to have comprehended or contemplated the
of Section 4 of the Act that in case of a proposed or con- settlement. In the aforesaid view of the matter, in our
templated settlement, notice should be given to the vic- opinion, notice was necessary. The victims at large did
tims who are affected or whose rights are to be affected not have the notice.
to ascertain their views. Section 4 is significant. It en-
joins the Central Government only to have “due regard 120. The question, however, is that the settlement had
to any matters which such person may require to be been arrived at after great deal of efforts to give immedi-
urged”. So, the obligation is on the Central Government ate relief to the victims. We have noticed the order dated
in the situation contemplated by Section 4 to have due 4th May, 1989 passed by this Court indicating the rea-
regard to the views of the victims and that obligation sons which impelled the Court to pass the orders on 14/
cannot be discharged by the Central Government unless 15th February, 1989 in terms and manner as it did. It has
the victims are told that a settlement is proposed, intended been urged before us on behalf of some of the victims
or contemplated. It is not necessary that such views would that justice has not been done to their views and claims
require consent of all the victims. The Central Govern- in respect of the damages suffered by them. It appears to
ment as the representative of the victims must have the us by reading the reasons given by this Court on 4th May,
views of the victims and place such views before the 1989 that justice perhaps has been done but the question
court in such manner it considers necessary before a set- is, has justice appeared to have been done and more pre-
tlement is entered into. If the victims want to advert to cisely, the question before this Court is: does the act en-
certain aspect of the matter during the proceedings un- visage a procedure or contemplate a procedure which
der the Act and settlement indeed is an important stage ensures not only that justice is done but justice appears
in the proceedings, opportunities must be given to the to have been done. If the procedure does not ensure that
victims. Individual notices may not be necessary. The justice appears to have been done, is it valid? Therefore,
Court can, and in our opinion, should in such situation in our opinion, in the background of this question we
formulate modalities of giving notice and public notice must hold that Section 4 means and entails that before
can also be given inviting views of the victims by the entering into any settlement affecting the rights and
help of mass media. claims of the victims some kind of notice or information
should be given to the victims, we need not now spell
118. Our attention was drawn to similar situations in other out the actual notice and the manner of its giving to be
lands where in mass disaster actions of the present type consistent with the mandate and purpose of Section 4 of
of mass calamity actions affecting a large number of the Act.
people, notices have been given in different forms and it
may be possible to invite the views of the victims by 121. This Court in its order dated 4th May, 1989 has
announcement in the media, Press, radio, and TV etc. stated that in passing orders on 14th/15th February, 1989,
intimating to the victims that a certain settlement is pro- this Court was impelled by the necessity of urgent relief
posed or contemplated and inviting views of the victims to the victims rather than to depend upon the uncertain
within a stipulated period. And having regard to the views, promise of law. The Act, as we have construed, requires
the Central Government may proceed with the settlement notice to be given in what form and in what manner, it
of the action. Consent of all is not a precondition as we need not be spelled out, before entering into any settle-
read the Act under Section 4. Hence, the difficulties sug- ment of the type with which we are concerned. It further
gested by the learned Attorney General in having the appears that type of notice which is required to be given
consent of all and unanimity do not really arise and should had not been given. The question, therefore, is what is to
not deter us from construing the section as we have. be done and what is the consequence? The Act would be
bad if it is not construed in the light that notice before
119. The next aspect of the matter is, whether in the afore- settlement under Section 4 of the Act was required to be
said light Section 4 has been complied with. The fact given. Then arises the question of consequences of not
that there was no specific notice given to the victims as giving the notice. In this adjudication, we are not strictly
such in this case is undisputed. Learned Attorney Gen- concerned with the validity or otherwise of the settle-
eral, however, sought to canvass the view that the vic- ment, as we have indicated hereinbefore. But constitu-
tims had notice and some of them had participated in the tional adjudication cannot be divorced from the reality
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CHARAN L AL SAHU V U NION OF INDIA
of a situation, or the impact of an adjudication. Consti- against the settlement would be heard.
tutional deductions are never made in the vacuum. These
deal with life’s problems in the reality of a given situa- 122. On behalf of the victims, it was suggested that the
tion. And no constitutional adjudication is also possible basis of damages in view of the observations made by
unless one is aware of the consequences of such an adju- this Court in M.C. Mehta’s case (AIR 1987 SC 1086)
dication. One hesitates in matters of this type where large (supra) against the victims of UCC of UCIL would be
consequences follow one way or the other to put asun- much more than normal damages suffered in similar case
der what others have put together. It is well to remem- against any other company or party which is financially
ber, as did Justice Holmes, that time has upset many fight- not so solvent or capable. It was urged that it is time in
ing faiths and one must always wager one’s salvation order to make damages deterrent the damages must be
upon some prophecy based upon imperfect knowledge. computed on the basis of the capacity of a delinquent
Our knowledge changes; our perception of truth also made liable to pay such damages and on the monetary
changes. It is true that notice was required to be given capacity of the delinquent the quantum of the damages
and notice has not been given. The notice which we have awarded would vary and not on the basis of actual con-
contemplated is a notice before the settlement or what is sequences suffered by the victims. This is an uncertain
known in legal terminology as pre-decisional notice. But premise of law. On the basis of evidence available and
having regard to the urgency of the situation and having on the basis of the principles so far established, it is dif-
regard to the need for the victims for relief and help and ficult to foresee any reasonable possibility of acceptance
having regard to the fact that so much effort has gone in of this yardstick. And even if it is accepted, there are
finding a basis for the settlement, we, at one point of numerous difficulties of getting that view accepted in-
time, thought that a post-decisional hearing in the facts ternationally as a just basis in accordance with law. These,
and circumstances of this case might be considered to be however, are within the realm of possibility.
sufficient compliance with the requirements of princi-
ples of natural justice as embodied under Section 4 of 123. It was contended further by Shri Garg, Shri Shanti
the Act. The reasons that impelled this Court to pass the Bhushan and Ms. Jaising that all the further particulars
orders of 14th/15th February 1989 are significant and upon which the settlement had been entered into should
compelling. If notice was given, then what would have have been given in the notice which was required to be
happened? It has been suggested on behalf of the vic- given before a settlement was sanctified or accepted. We
tims by counsel that if the victims had been given an are unable to accept this position. It is not necessary that
opportunity to be heard, then they would have perhaps all other particulars for the basis of the proposed settle-
pointed out, inter alia, that the amount agreed to be paid ment should be disclosed in a suit of this nature before
through the settlement was hopelessly inadequate. We the final decision. Whatever data was already there have
have noted the evidence available to this Court which been disclosed, that, in our opinion, would have been
this Court has recorded in its order dated 4th May, 1989 sufficient for the victims to be able to give their views, if
to be the basis for the figure at which the settlement was they want to. Disclosure of further particulars are not
arrived at. It is further suggested that if an opportunity warranted by the requirement of principles of natural
had been given before the settlement, then the victims justice. Indeed, such disclosure in this case before final-
would have perhaps again pointed out that criminal li- ity might jeopardize future action, if any, necessary so
ability could not be absolved in the manner in which this consistent with justice of the case.
Court has done on the 14th/15th February, 1989. It was
then contended that the Central Government was itself 124. So on the materials available, the victims would have
sued as a joint tort-feasor. The Central Government would to express their views. The victims have not been able to
still be liable to be proceeded in respect of any liability show at all any other point or material which would go
to the victims if such a liability is established; that li- to impeach the validity of the settlement. Therefore, in
ability is in no way abridged or affected by the Act of the our opinion, though settlement without notice is not quite
settlement entered into. It was submitted on behalf of proper, on the materials so far available, we are of the
the victims that if an opportunity had been given, they opinion that justice has been done to the victims but jus-
would have perhaps pointed out that the suit against the tice has not appeared to have been done. In view of the
Central Government, Government of Madhya Pradesh magnitude of the misery involved and the problems in
and UCIL could not have been settled by the compro- this case, we are also of the opinion that the setting aside
mise. It is further suggested that if given an opportunity, of the settlement on this ground in view of the facts and
it would have been pointed out that UCIL should have the circumstances of this case keeping the settlement in
also been sued. One of the important requirements of abeyance and giving notice to the victims for a post-
justice is that people affected by an action or inaction decisional hearing would not be in the ultimate interest
should have opportunity to have their say. That opportu- of justice. It is true that not giving notice was not proper
nity the victims have got when these applications were because principles of natural justice are fundamental in
heard and they were heard after utmost publicity and they the constitutional set up of this country. No man or no
would have further opportunity when review application man’s right should be affected without an opportunity to
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
ventilate his views. We are also conscious that justice is categorization and claim, the authorities must act on prin-
a psychological yearning, in which men seek acceptance ciples of natural justice and act quasi-judicially.
of their view point by having an opportunity of vindica-
tion of their view point before the forum or the authority 126. As mentioned hereinbefore, good deal of arguments
enjoined or obliged to take a decision affecting their right. were advanced before us as to whether the clause in the
Yet, in the particular situations, one has to bear in mind settlement that criminal proceedings would not be pro-
how an infraction of that should be sought to be removed ceeded with and the same will remain quashed is valid
in accordance with justice. In the facts and the circum- or invalid. We have held that these are not part of the
stances of this case where sufficient opportunity is avail- proceedings under the Act. So the orders on this aspect
able when review application is heard on notice, as di- in the order of 14th/15th February, 1989 are not orders
rected by Court, no further opportunity is necessary and under the Act. Therefore, on the question of the validity
it cannot be said that injustice has been done. “To do a of the Act, this aspect does not arise. Whether the settle-
great right” after all, it is permissible sometimes “to do a ment of criminal proceedings or quashing the criminal
little wrong”. In the facts and circumstances of the case, proceedings could be a valid consideration for settlement
this is one of those rare occasions. Though entering into or whether if it was such a consideration or not is a mat-
a settlement without the requirement notice is wrong. In ter which the Court reviewing the settlement has to de-
the facts and the circumstances of this case, therefore, cide.
we are of the opinion, to direct that notice should be given
now, would not result in dain (sic) justice in the situa- 127. In the premise, we hold that the Act is constitution-
tion. In the premises, no further consequential order is ally valid in the manner we read it. It proceeds on the
necessary by this Court, had it been necessary for this hypothesis that until the claims of the victims are real-
Bench to have passed such a consequential order, we ized or obtained from the delinquents, namely, UCC and
would not have passed any such consequential order in UCIL by settlement or by adjudication and until the pro-
respect of the same. ceedings in respect thereof continue the Central Gov-
ernment must pay interim compensation or maintenance
125. The sections and the scheme dealing with the de- for the victims. In entering upon the settlement in view
termination of damages and distribution of the amount of Section 4 of the Act, regard must be had to the views
have also been assailed as indicated before. Our atten- of the victims and for the purpose of giving regard to
tion was drawn to the provisions of the Act dealing with these, appropriate notices before arriving at any settle-
the payment of compensation and the scheme framed ment, were necessary. In some cases, however, post-
therefor. It was submitted that Section 6 of the Act en- decisional notice might be sufficient but in the facts and
joins appointment by the Central Government of an of- the circumstances of this case, no useful purpose would
ficer known as the Commissioner for the welfare of the be served by giving a post-decisional hearing having re-
victims. It was submitted that this does not give suffi- gard to the circumstances mentioned in the order of this
cient judicial authority to the officer and would be really Court dated 4th May, 1989 and having regard to the fact
leaving the adjudication under the scheme by an officer that there are no further additional data and facts avail-
of the executive nature. Learned Attorney General has, able with the victims which can be profitably and mean-
however, submitted that for disbursement of the com- ingfully presented to controvert the basis of the settle-
pensation contemplated under the Act or under the or- ment and further having regard to the fact that the vic-
ders of this Court, a notification would be issued under tims had their say or on their behalf their views had been
S.6(3) of the Act authorizing the Commissioner or other agitated in these proceedings and will have further op-
officers to exercise all or any of the powers which the portunity in the pending review proceedings. No further
Central Government may exercise under S.6 to enable order on this aspect is necessary. The sections dealing
the victims to place before the Commissioner or Deputy with the payment of compensation and categorization
Commissioner any additional evidence that they would would be implemented in the manner indicated before.
like to adduce. We direct so, and such appropriate notifi-
cation be issued. We further direct that in the Scheme 128. The Act was conceived on the noble promise of giv-
categorization to be done of the Deputy Commissioner ing relief and succour to the dumb, pale, meek and im-
should be appealable to an appropriate judicial authority poverished victims of a tragic industrial gas leak disas-
and the Scheme should be modified accordingly. We re- ter, a concomitant evil in this industrial age of techno-
iterate that the basis of categorization and the actual cat- logical advancement and development. The act had kin-
egorization should be justifiable and judicially review- dled high hopes in the hearts of the weak and worn, wary
able - the provisions in the Act and the Scheme should and forlorn. The Act generated hope of humanity. The
be so read. There were large numbers of submissions implementation of the Act must be with justice. Justice
made on behalf of the victims about amending the perhaps has been done to the victims situated as they
scheme. Apart from and to the extent indicated above, in were, but it also true that justice has not appeared to have
our opinion, it would be unsafe to tinker with the scheme been done. That is a great infirmity. That is due partly to
piecemeal. We, however, make it clear that in respect of the fact that procedure was not strictly followed as we
214
CHARAN L AL SAHU V U NION OF INDIA
have understood it and also partly because of the ensure measures preventing such occurrence. The Gov-
automsphere that was created in the country, attempts ernment should also ensure that the parties must agree
were made to shake the confidence of the people in the to abide to pay such damages out of the said damages by
judicial process and also to undermine the credibility of procedure separately evolved for computation and pay-
this Court. This was unfortunate. This was perhaps due ment of damages without exposing the victims or suffer-
to misinformed public opinion and also due to the fact ers of the negligent act to the long and delayed proce-
that victims were not initially taken into confidence in dure. Special procedure must be provided for and the
reaching the settlement. This is a factor which empha- industries must agree as a condition for the grant of li-
sizes the need for adherence to the principles of natural cence to abide by such procedure or to abide by statu-
justice. The credibility of judiciary is as important as the tory arbitration. The basis for damages in case of leak-
alleviation of the suffering of the victims, great as these ages and accident should also be statutorily fixed taking
were. We hope these adjudications will restore that cred- into consideration the nature of damages inflicted, the
ibility. Principles of natural justice are integrally embed- consequences thereof and the ability and capacity of the
ded in our constitutional framework and their pristine parties to pay. Such should also provide for deterrent or
glory and primacy cannot and should not be allowed to punitive damages, the basis for which should be formu-
be submerged by the exigencies of particular situations lated by a proper expert committee or by the Govern-
or cases. This Court must always assert primacy of ad- ment. For this purpose, the Government should have the
herence to the principles of natural justice in all matter examined by such body as it considers necessary
adjudications. But at the same time, these must be ap- and proper like the Law Commission or other competent
plied in a particular manner in particular cases having bodies. This is vital for the future.
regard to the particular circumstances. It is, therefore,
necessary to reiterate that the promises made to the vic- 130. This case has taken some time. It was argued exten-
tims and hopes raised in their hearts and minds can only sively. We are grateful to counsel who have assisted in
be redeemed in some measure if attempts are made vig- all these matters. We have reflected. We have taken some
orously to distribute the amount realized to the victims time in pronouncing our decision. We wanted time to
in accordance with the scheme as indicated above. That lapse so that the heat of the moment may calm down and
would be a redemption to a certain extent. It will also be proper atmosphere restored. Justice, it has been said, is
necessary to reiterate that attempts should be made to the constant and perpetual disposition to render every
formulate the principles of law guiding the Government man his due. But what is a man’s due in a particular situ-
and the authorities to permit carrying on of trade dealing ation and in a particular circumstance is a matter for
with materials and things which have dangerous conse- appraisement and adjustment. It has been said that jus-
quences within sufficient specific safe guards especially tice is balancing. The balances have always been the sym-
in case of multinational corporations trading in India. bol for even-handed justice. But as said by Lord Denning
An awareness on these lines has dawned. Let action fol- in Jones v. National Coal Board Ltd., (1957) 2 QB 55, at
low that awareness. It is also necessary to reiterate that p. 64, let the advocates one after the other put the weights
the law relating to damages and payment of interim dam- into the scales the ‘nicely calculated less or more’ but
ages or compensation to the victims of this nature should the Judge at the end decides which way the balance tilts,
be seriously and scientifically examined by the appro- be it ever so slightly. This is so in every case and every
priate agencies. situation.
129. The Bhopal Gas Leak disaster and its aftermath of 131. The applications are disposed of in the manner and
that emphasize the need for laying down certain norms with the direction, we have indicated above.
and standards that the Government to follow before grant-
ing permissions or licences for the running of industries SINGH, J.:- 132. I have gone through the proposed
dealing with materials which are of dangerous potenti- judgement of my learned brother, Sabyasachi Mukarji,
alities. The Government should, therefore, examine or CJI. I agree with the same but I consider it necessary to
have the problem examined by an expert committee as express my opinion on certain aspects.
to what should be the conditions on which future licences
and/or permission for running industries of Indian soil 133. Five years ago between the night of December 2-3,
would be granted and for ensuring enforcement of those 1984 one of the most tragic industrial disasters in the
conditions, sufficient safety measure should be formu- recorded history of mankind occurred in the city of
lated and scheme of enforcement indicated. The Gov- Bhopal, in the State of Madhya Pradesh, as a result of
ernment should insist as a condition precedent to the grant which several persons died and thousands were disabled
of such licences or permissions, creation of a fund in and physically incapacitated for life. The ecology in and
anticipation by the industries to be available for payment around Bhopal was adversely affected and air, water and
of damages out of the said fund in case of leakages or the atmosphere was polluted, its full extent has yet to be
damages in case of accident or disaster flowing from neg- determined. Union Carbide India Limited (UCIL) a sub-
ligent working of such industrial operations or failure to sidiary of Union Carbide Corporation (a Transnational
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
Corporation of United States) has been manufacturing residing in the surrounding areas. Though working of
pesticides at its plant located in the city of Bhopal. In the such factories and plants is regulated by a number of
process of manufacture of pesticide the UCIL has stored laws of our country, i.e. the Factories Act, Industrial De-
stock of Methyl Isocyanate commonly known as MIC a velopment and Regulation Act and Workmen’s Compen-
highly toxic gas. On the night of the tragedy, the MIC sation Act etc. there is no special legislation providing
leaked from the plant in a substantial quantity causing for compensation and damages to outsiders who may suf-
death and misery to the people working in the plant and fer on account of any industrial accident. As the law
those residing around it. The unprecedented catastrophe stands to-day, affected persons have to approach civil
demonstrated the dangers inherent in the production of courts for obtaining compensation and damages. In civil
hazardous chemicals even though for the purpose of in- courts, the determination of amount of compensation or
dustrial development. A number of civil suits for dam- damages as well as the liability of the enterprise has been
ages against the UCC were filed in the United States of bound by the shackles of conservative principles laid
America and also in this country. The cases filed in USA down by the House of Lords in Ryland v. Fletcher, (1868)
were referred back to the Indian courts by Judge Keenan 3 HL 330. The principles laid therein made it difficult to
details of which are contained in the judgement of my obtain adequate damages from the enterprise and that
learned brother Mukharji CJI. Since those who suffered too only after the negligence of the enterprise was proved.
in the catastrophe were mostly poor, ignorant, illiterate This continued to be the position of law till a Constitu-
and ill-equipped to pursue their claims for damages ei- tion Bench of this Court in M.C. Mehta v. Union of In-
ther before the courts in USA or in Indian Courts, the dia, (1987) 1 SCC 395: (AIR 1987 SC 1086), commonly
Parliament enacted the Bhopal Gas Leak Disaster known as Sriram Oleum Gas Leak case evolved princi-
(Processing of Claims) Act 1985 (hereinafter referred to ples and laid down new norms to deal adequately with
as ‘the Act’) conferring power on the Union of India to the new problems arising in a highly industrialized
take over the conduct of litigation in this regard in place economy. This Court made judicial innovation in laying
of the individual claimants. The facts and circumstances down principles with regard to liability of enterprises
which led to the settlement of the claims before this Court carrying hazardous or inherently dangerous activities de-
have already been stated in detail in the judgement of parting from the rule laid down in Ryland v. Fletcher.
Mukharji, CJI and, therefore, I need not refer to those The Court held as under:
facts and circumstances. The constitutional validity of
the Act has been assailed before us in the present peti- “We are of the view that an enterprise which is en-
tions. If the Act is declared unconstitutional, the settle- gaged in a hazardous or inherently dangerous industry
ment which was recorded in this Court, under which the which poses a potential threat to the health and safety
UCC has already deposited a sum of Rs. 750 crores for of the persons working in the factory and residing in
the surrounding areas owes an absolute and non-del-
meeting the claims of Bhopal Gas victims would fall and
egable duty to the community to ensure that no harm
the amount of money which is already in deposit with results to anyone on account of hazardous or inher-
the Registry of this Court would not be available for re- ently dangerous nature of the activity which it has un-
lief to the victims. Long and detailed arguments were dertaken. The enterprise must be held to be under an
advanced before us for a number of days and on an anx- obligation to provide that the hazardous or inherently
ious consideration and having regard to the legal and con- dangerous activity in which it is engaged must be con-
stitutional aspects and especially the need for immedi- ducted with the highest standards of safety and if any
ate help and relief to the victims of the gas disaster, which harm results on account of such activity, the enterprise
is already delayed, we have upheld the constitutional va- must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that
lidity of the Act. Mukharji, CJI has rendered a detailed
it had taken all reasonable care and that the harm oc-
and elaborate judgement with which I respectfully agree. curred without any negligence on its part. Since the
However, I consider it necessary to say few words with persons harmed on account of the hazardous or inher-
regard to the steps which should be taken by the Execu- ently dangerous activity carried on by the enterprise
tive and the Legislature to prevent such tragedy in fu- would not be in a position to isolate the process of
ture, and to avoid the prolonged misery of victims of an operation from the hazardous preparation of substance
industrial disaster. or any other related element that caused the harm the
enterprise must be held strictly liable for causing such
134. We are a developing country, our national resources harm as a part of the social cost of carrying on the
hazardous or inherently dangerous activity. If the en-
are to be developed in the field of science, technology,
terprise is permitted to carry on an hazardous or inher-
industry and agriculture. The need for industrial devel- ently dangerous activity for its profit, the law must
opment has led to the establishment of a number of plants presume that such permission is conditional on the
and factories by the domestic companies and undertak- enterprise absorbing the cost of any accident arising
ings as well as by Transnational Corporations. Many of on account of such hazardous or inherently dangerous
these industries are engaged in hazardous or inherently activity as an appropriate item of its overheads. Such
dangerous activities which pose potential threat to life, hazardous or inherently dangerous activity for private
health and safety of persons working in the factory, or profit can be tolerated only on condition that the en-
216
CHARAN L AL SAHU V U NION OF INDIA
terprise engaged in such hazardous or inherently dan- they influenced political and economic policies of host
gerous activity indemnifies all those who suffer on countries which subverted the sovereignty of those coun-
account of the carrying on of such hazardous or inher- tries. There has been complaints against the multination-
ently dangerous activity regardless of whether it is car- als for adopting unfair and corrupt means to advance their
ried on carefully or not. This principle is also sustain-
interests in the host countries. Since this as a worldwide
able on the ground that the enterprise alone has the
resource to discover and guard against hazards or dan- phenomena the United Nations took up the matter for
gers and to provide warning against potential hazards. consideration. The Economic and Social Council for the
We would therefore hold that where an enterprise is United Nations established a Commission on
engaged in a hazardous or inherently dangerous activ- Transnational Corporations to conduct research on vari-
ity and harm results to anyone on account of an acci- ous political, economic and social aspects relating to
dent in the operation of such hazardous or inherently transnational corporations. On a careful and detailed
dangerous activity resulting, for example, in escape of study the Commission submitted its Report in 1985 for
toxic gas the enterprise is strictly and absolutely liable evolving a Code of Conduct for Transnational Corpora-
to compensate all those who are affected by the acci-
tion. The Code was adopted in 1986 to which large
dent and such liability is not subject to any of the ex-
ceptions which operate vis-a-vis the tortious principle number of countries of the world are signatories. Al-
of strict liability under the rule in Rylands v. Fletcher.” though it has not been fully finalized as yet. The Code
presents a comprehensive instrument formulating the
The law so laid down made a landmark departure from principles of Code of Conduct for transnational corpo-
the conservative principles with regard to the liability of rations carrying on their enterprises in under-developed
an enterprise carrying on hazardous or inherently dan- and developing countries. The Code contains provisions
gerous activities. regarding ownership and control designed to strike bal-
ance between the competing interests of the Transnational
135. n the instant cases there is no dispute that UCIL a Corporations and the host countries. It extensively deals
subsidiary of UCC was carrying on activity of manufac- with the political, economic, financial, social and legal
turing pesticide and in that process it had stored MIC a questions. The Code provides for disclosure of informa-
highly toxic and dangerous gas which leaked causing tion to the host countries and it also provides guidelines
vast damage not only to human life but also to the flora for nationalization and compensation, obligations to in-
and fauna and ecology in and around Bhopal. In view of ternational law and jurisdiction of Courts. The Code lays
this Courts decision in M.C. Mehta’s case (AIR 1987 down provisions for settlement of disputes between the
SC 1086), there is no scope for any doubt regarding the host States and an affiliate of a Transnational Corpora-
liability of the UCC for the damage caused to the human tion. It suggests that such disputes should be submitted
beings and nature in and around Bhopal. While entering to the national courts or authorities of host countries un-
into the settlement the UCC has accepted its liability and less amicably settled between the parties. It provides for
for that reason it has deposited a sum of Rs. 750 crores the choice of law and means for dispute settlement aris-
in this Court. The inadequacy of the amount of compen- ing out of contracts. The Code has also laid down guide-
sation under the settlement was assailed by the counsel lines for the determination of settlement of disputes aris-
for the petitioners but it is not necessary for us to ex- ing out of accident and disaster and also for liability of
press any opinion on that question as review petitions Transnational Corporations and the jurisdiction of the
are pending before another Constitution Bench and more Courts. The Code is binding on the countries which for-
so, as in the present cases we are concerned only with mally accept it. It was stated before us that India has
the constitutional validity of the Act. accepted the Code. If that be so, it is necessary that the
Government should take effective measures to translate
136. The Bhopal Gas tragedy has raised several impor- the provisions of the Code into specific actions and poli-
tant questions regarding the functioning of multi-nation- cies backed by appropriate legislation and enforcing
als in third world countries. After the second World War machinery to prevent any accident or disaster and to se-
Colonial Rule came to end in several parts of the globe, cure the welfare of the victims of any industrial disaster.
as a number of nations secured independence from for-
eign rule. The political dominion was over but the newly 137. In the context of our national dimensions of human
born nations were beset with various problems on ac- rights, right to life, liberty, pollution free air and water is
count of lack of finances and development. A number of guaranteed by the Constitution under Articles 21, 48A
multi-nationals and transnational corporations offered and 51(g), it is the duty of the State to take effective
their services to the underdeveloped and developing steps to protect the guaranteed constitutional rights. These
countries to provide finances and technical know-how rights must be integrated and illumined by the evolving
by setting up their own industries in those countries on international dimensions and standards, having regard
their own terms and brought problems with regard to the to our sovereignty, as highlighted by Clauses 9 and 13 of
control over the functioning of the transnational corpo- U.N. Code of Conduct of Transnational Corporations.
rations. Multi-national companies in many cases ex- The evolving standards of international obligations need
ploited the underdeveloped nations and in some cases to be respected, maintaining dignity and sovereignty of
217
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
our people, the State must take effective steps to safe- wrought by the atomic explosions in Hiroshima and
guard the constitutional rights of citizens by enacting Nagasaki. Multitudes of illiterate and poverty-stricken
laws. The laws so made may provide for conditions for people in and around Bhopal suffered damage to life and
granting licence to Transnational Corporations, prescrib- limb due to the escape of poisonous Methyl Isocyanate
ing norms and standards for running industries on In- (MIC) gas from one of the storage tanks at the factory of
dian soil ensuring the constitutional rights of our people the Union Carbide (India) Limited (UCIL) in Bhopal, a
relating to life, liberty, as well as safety to environment wholly owned subsidiary of the multinational plant, the
and ecology to enable the people to lead a healthy and Union Carbide Corporation (UCC). A number of civil
clean life. A Transnational Corporation should be made suits claiming damages from the UCC were filed in the
liable and subservient to laws of our country and the li- United States of America and similar litigation also fol-
ability should not be restricted to affiliate company only lowed in Indian courts. Fearing the possibilities of the
but the parent Corporation should also be made liable exploitation of the situation by vested interests, the Gov-
for any damage caused to the human beings or ecology. ernment of India enacted the Bhopal Gas Leak Disaster
The law must require transnational corporations to agree (Processing of Claims) Act, 1985 (‘the Act’) to regulate
to pay such damages as may be determined by the statu- the course of such litigation. Briefly speaking, it empow-
tory agencies and forums constituted under it without ered the Union of India to take over the conduct of all
exposing the victims to long drawn litigation. Under the litigation in this regard and conduct it in place of, or in
existing civil law, damages are determined by the Civil association with, the individual claimants. It also ena-
Courts, after a long drawn litigation, which destroys the bled the Union to enter into a compromise with the UCC
very purpose of awarding damages. In order to meet the and UCIL and arrive at a settlement. The writ petitions
situation to avoid delay and to ensure immediate relief before us have been filed challenging the constitutional
to the victims we would suggest that the law made by validity of this statute on the ground that the divestiture
the Parliament should provide for constitution of tribu- of the claimants’ individual rights to legal remedy against
nals regulated by special procedure for determining com- the multinational for the consequences of carrying on
pensation to victims of industrial disaster or accident, dangerous and hazardous activities on our soil violates
appeal against which may lie to this Court on limited the fundamental rights guaranteed under Arts. 14, 19 and
ground of questions of law only after depositing the 21 of the Constitution.
amount determined by the Tribunal. The law should also
provide for interim relief to victims during the pendency In consequence of certain proceedings before Judge
of proceedings. These steps would minimize the misery Keenan of the U.S. district Courts, the venue of the liti-
and agony of victims of hazardous enterprises. gation shifted to India. In the principal suit filed in India
by the Union (Civil Suit No. 1113/86) orders were passed
138. There is yet another aspect which needs considera- by the trial Court in Bhopal directing the UCC to de-
tion by the Government and the Parliament. Industrial posit Rs. 370 crores (reduced to Rs. 250 crores by the
development in our country and the hazards involved Madhya Pradesh High Court) as interim payment to the
therein, pose a mandatory need to constitute a statutory gas victims pending the disposal of the suit. There were
“Industrial Disaster Fund”, contributions to which may appeals to this Court in which the UCC contested the
be made by the Government, the industries whether they Court’s jurisdiction to pass an order for an interim pay-
are transnational corporations or domestic undertakings, ment in a suit for money, while the Union pleaded that a
public or private. The extent of contribution may be much higher interim payment should have been granted.
worked out having regard to the extent of hazardous na- When the matter was being argued in this Court, a set-
ture of the enterprise and other allied matters. The Fund tlement was arrived at between the Union and the UCC
should be permanent in nature, so that money is readily under which a sum of Rs. 750 crores has been received
available for providing immediate effective relief to the by the Union in full settlement of all the claims of all
victims. This may avoid delay, as has happened in the victims of the gas leak against the UCC. The Union also
instant case in providing effective relief to the victims. agreed to withdraw certain prosecutions that had been
The Government and the Parliament should therefore take initiated against the officials of the UCC and UCIL in
immediate steps for enacting laws, having regard to these this connection. This settlement received the imprima-
suggestions, consistent with the international norms and tur of this Court in its orders dated 14th and 15th Febru-
guidelines contained in the United Nations Code of Con- ary 1989.
duct on Transnational Corporations.
It is unfortunate that, though the writ petitions before us
139. With these observations, I agree with the order pro- were pending in this Court at that time, neither their con-
posed by my learned brother, Sabhyasachi Mukarji, CJI. tents nor the need of considering first the issue of the
validity of the Act before thinking of a settlement in pur-
140. RANGANATHAN, J.:- Five years ago, this coun- suance of its provisions seem to have been effectively
try was shaken to its core by a national catastrophe, sec- brought to the notice of the Bench which put an end to
ond in magnitude and disastrous effects only to the havoc all the litigations on this topic in terms of the settlement.
218
CHARAN L AL SAHU V U NION OF INDIA
The settlement thus stood approved while the issue of ment has been effected, or the circumstances in which
validity of the Act under which it was effected stood or the amount for which the claims of the victims have
undecided. When this was brought to the notice of the been settled, do not have a bearing on this question of
above Bench, it directed these write petitions to be listed interpretation and have to be left out of account alto-
before a different Bench to avoid any possible feeling gether except as providing a contextual background in
that the same Bench may be coloured in its views on the which the question arises. Turning therefor to the statute
issue by reason of the approval it had given to the fait and its implications, the position is this. Every person
accompli viz. the settlement. That is how these matters who suffered as a consequence of the gas leak had a right
come before us. to claim compensation from the persons who, according
to him, were liable in law for the injury caused to him
The petitioners claiming to represent a section of the vic- and also a right to institute a suit or proceeding before
tims are firstly, against any settlement at all being ar- any Court or authority with a view to enforce his right to
rived at with the UCC. According to them, it is more claim damages. In the normal course of events, such a
important to ensure by penal actio that multinational claimant who instituted a suit or proceeding would have
corporations do not play with the lives of people in de- been at complete liberty to withdraw the said suit or pro-
veloping and under developed countries than to be satis- ceeding or enter into any compromise he may choose in
fied with mere compensation for injury and that the crimi- that regard. Section 3 undoubtedly takes away this right
nal prosecutions initiated in this case should have been of the claimant altogether: (a) except to the limited ex-
pursued. Secondly, they are of the view that the amount tents specified in the proviso to Section 3(3) and (b) sub-
for which the claims have been settled is a pittance, far ject to the provisions of Section 4, for this section clearly
below the amount of damages they would have been en- states that it is the Central Government and the Central
titled to, on the principles of strict, absolute and punitive Government alone which has the right to represent and
liability enunciated by this Court in Mehta’s case, (1987) act in place of the claimants, whether within or outside
1 SCR 819: (AIR 1978 SC 1086). Thirdly, their griev- India, for all purposes in connection with the enforce-
ance is that no publicity at all was given, before this Court ment of his claims. We may first consider how far the
passed its order, to enable individual claimants or groups main provision in Section 3 (leaving out of account the
of them to put forward their suggestions or objections to proviso as well as Section 4) is compatible with the Con-
the settlement proposed. Their interest were sealed, they stitution.
say, without complying with elementary principles of
natural justice. They contend that the provisions of an The first question that arises is whether the legislature is
Act which has made such a settlement possible cannot justified in depriving the claimants of the right and privi-
be constitutionally valid. lege of enforcing their claims and prosecuting them in
such manner as they deem fit and in compulsorily inter-
The arguments before us ranged over a very wide ground, posing or substituting the Government in their place. We
covered several issues and extended to several days. This think that, to this question, there can be only one an-
Bench has been placed in somewhat of a predicament as swer. As pointed out by our learned brother, the situa-
it has to pronounce on the validity of the provisions of tion was such that the victims of the tragedy needed to
the Act in the context of an implementation of its provi- be protected against themselves as their adversary was a
sions in a particular manner and, though we cannot (and mighty multi-national corporation and proceedings to a
do not) express any views regarding the merits of the considerable extent had been initiated in a foreign coun-
settlement, we are asked to consider whether such set- try, where the conduct of the cases was entrusted to for-
tlement can be consistent with a correct and proper in- eign lawyers under a system of litigation which is unfa-
terpretation of the Act tested on the touchstone of the miliar to us here. In the stark reality of the situation, it
fundamental rights guaranteed under the Constitution. cannot even be plausibly contended that the large number
Mukharji, C.J., has outlined the issues, dealt elaborately of victims of the gas leak disaster should have been left
with the contentions urged, and given expression to his to tend for itself and merely provided with some legal
conclusions in a learned, elaborate and detailed judge- aid or one type or another. It is necessary to remember
ment which we have had the advantage of perusing in that, having regard to the identity of the principal ground
draft. Our learned brother K.N. Singh, J., has also high- of claim of all the victims, even if a single victim was
lighted certain aspects in his separate judgement. We are, not diligent in conducting his suit or entered into a com-
in large measure, in agreement with them, but should promise or submitted to a decree judging the issues purely
like to say a few words on some of the issues in this from his individual point of view, such a decision or de-
case, particularly those in regard to which our approach cree could adversely affect the interests of the innumer-
has been somewhat different. able other victims as well. In fact, it appears that a set-
tlement between one set of claimants and the adversary
141. The issue regarding the validity of the Act turns prin- corporation was almost imminent and would perhaps
cipally on the construction of Sections 3 and 4 of the have been through but for the timely intervention of the
Act. We are inclined to hold that the fact that a settle- Government of India. The battles for the enforcement of
219
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
one’s rights was bound to be not only prolonged but also gation. Very few of them are capable of prosecuting such
very arduous and expensive and the decision of the leg- a litigation in this country not to speak of the necessity
islature that the fight against the adversary should be con- to run to a foreign country. The financial position of UCIL
solidated and its conduct handed over to the Government was negligible compared to the magnitude of the claim
of India - it may perhaps have been better if it had been that could arise and, though eventually the battle had to
handed over to an autonomous body independent of the be pitched on our own soil, an initial as well as final
Government but, as pointed out by our learned brother, recourse to legal proceedings in the United States was
the course adopted was also not objectionable - was per- very much on the cards, indeed inevitable. In this situa-
haps the only decision that could have been taken in the tion, the legislature was perfectly justified in coming to
circumstances. This is indeed a unique situation in which the aid of the victims with this piece of legislation and in
the victims, in order to realize to the best advantage their asking the Central Government to shoulder the respon-
right against UCC, had to be helped out by transposing sibility by substituting itself in place of the victims for
that right to be enforced by the Government. all purposes connected with the claims. Even if the Act
had provided for a total substitution of the Government
We did not indeed understand any learned Counsel be- of India in place of the victims and had completely pre-
fore us to say that the legislature erred in entrusting the cluded them from exercising their rights in any manner,
Government of India with the responsibility of fighting it could perhaps have still be contended that such depri-
for the victims. The only grievance is that in the process vation was necessary in larger public interest.
their right to take legal proceedings should not have been
completely taken away and that they should also have But the Act is not so draconian in its content. Actually,
had the liberty of participating in the proceedings right as we have said a little earlier, the grievance of the peti-
through. In fact, though the Act contemplates the Cen- tioners is not so much that the government was entrusted
tral Government to completely act in place of the vic- with the functions of a dominus litus in this litigation.
tims, the Government of India has not in fact displaced Their contention is that the whole object and purpose of
them altogether. In all the proceedings pending in this the litigation is to promote the interests of the claimants,
country, as well as those before Judge Keenan, the Gov- to enable them to fight the UCC with greater strength
ernment of India has conducted the proceedings but the and determination, to help them overcome limitations of
other victims or such of them as chose to associate them- time, money and legal assistance and to realize the best
selves in these proceedings by becoming parties were compensation possible consistent not only with the dam-
not shut out from taking part in the proceedings. In fact, age suffered by them but also consistent with national
as the learned Attorney General pointed out, one of the honour and prestige. It is suggested that the power con-
groups of litigants did give great assistance to the trial ferred on the Government should be construed as one
Judge at Bhopal. But even if the provisions of Section 3 hedged in by this dominant object. A divestiture of the
had been scrupulously observed and the names of all claimant’s rights in this situation would be reasonable, it
parties, other than the Central Government, had been got is said, only if the claimant’s rights are supplemented by
deleted from the array of parties in the suits and pro- the Government and not supplanted by it.
ceedings pending in this country, we do not think that
the result would have been fatal to the interests of the Assuming the correctness of the argument, the provisions
litigants. On the contrary, it enabled the litigants to ob- of the proviso to Section 3(3) and of Section 4 furnish an
tain the benefit of all legal expertise at the command of answer to this contention. While the provision contained
the Government of India in exercising their rights against in the main part of Section 3 may be sufficient to enable
the Union Carbide Corporation. Such representation can the Government of India to claim to represent the claim-
well be justified by resort to a principle analogous to, if ants and initiate and conduct suits or proceeding on their
not precisely the same as that of, “parens patriae”. A vic- behalf, the locus standi of the Government of India in
tim of the tragedy is compelled to part with a valuable suits filed by other claimants before the commencement
right of his in order that it might be more efficiently and of the Act outside India would naturally depend upon
satisfactorily exploited for his benefit than he himself is the discretion of the Court enquiring into the matter. That
capable of. It is of course possible that there may be an is why the proviso to Section 3 makes the right of the
affluent claimant or lawyer engaged by him, who may Government of India to represent and act in place of the
be capable of fighting the litigation better. It is possible victims in such proceedings subject to the permission of
that the Government of India as a litigant may or may the Court or authority where the proceedings are pend-
not be able to pursue the litigation with as much deter- ing. It is of course open to such Court to permit the Cen-
mination or capability as such a litigant. But in a case of tral Government even to displace the claimants if its is
the present type one should not be confounded by such a satisfied that the authority of the Act is sufficient to en-
possibility. There are more indigent litigants than afflu- able it to do so. In the present case it is common ground
ent ones. There are more illiterates than enlightened ones. that the proceedings before Judge Keenan were being
There are very few of the claimants, capable of finding prosecuted by the Central Government along with vari-
the financial wherewithal required for fighting the liti- ous individual claimants. Not only did Judge Keenan
220
CHARAN L AL SAHU V U NION OF INDIA
permit the association of the Government of India in these them, the Act fails the impecunious victims in this vital
proceedings but the Government of India did have a sub- aspect. The authority conferred by the Act on the Gov-
stantial voice in the course of those proceedings as well. ernment to enter into a settlement or compromise, it is
said, amounts to an absolute negation of the rights of the
Again Section 4 mandates that, notwithstanding anything claimants to compensation and is capable of being so
contained in Section 3, the Central Government, in rep- exercised to render such rights totally valueless, as in
resenting and acting in place of any person in relation to fact, it is said, has happened.
any claim, shall have due regard to any matters which
such person may require to be urged with respect to his It appears to us that this contention proceeds on a misap-
claim. It also stipulates that if such person so desires, the prehension. It is common knowledge that any authority
Central Government shall permit, at the expense of such given to conduct a litigation cannot be effective unless it
person, a legal practitioner of his choice to be associated is accompanied by an authority to withdraw or settle the
in the conduct of any suit or other proceeding relating to same if the circumstances call for it. The vagaries of a
his claim. In other words, though, perhaps, strictly speak- litigation of this magnitude and intricacy could not be
ing, under Section 3 the Central Government can totally fully anticipated. There were possibilities that the litiga-
exclude the victim himself or his legal practitioner from tion may have to be fought out to the bitter finish. There
taking part in the proceedings (except in pending suits were possibilities that the UCC might be willing to ad-
outside India), Section 4 keeps the substance of the rights equately compensate the victims either on their own or
of the victims intact. It enables, and indeed obliges, the at the insistence of the Governments concerned. There
Government to receive assistance from individual claim- was also the possibility, which had already been in evi-
ants to the extent they are able to offer the same. If any dence before Judge Keenan, that the proceedings might
of the victims of their legal advisers have any specific ultimately have to end in a negotiated settlement. One
aspect which they would like to urge, the Central Gov- notices that in most of the mass disaster cases reported,
ernment shall take it into account. Again if any individual proceedings finally end in a compromise if only to avoid
claimant at his own expense retains a legal practitioner an indefinite prolongation of the agonies caused by such
of his own choice such legal practitioner will have to be litigation. The legislation, therefore, cannot be consid-
associated with the Government in the conduct of any ered to be unreasonable merely because in addition to
suit or proceeding relating to his claim. Sections 3 and 4 the right to institute a suit or other proceedings it also
thus combine together the interests of the weak, illiter- empowers the Government to withdraw the proceedings
ate, helpless and poor victims as well as the interests of or enter into a compromise.
those who could have managed for themselves, even
without the help of this enactment. The combination thus Some misgivings were expressed, in the course of the
envisaged enables the Government to fight the battle with hearing, of the legislative wisdom (and, hence the valid-
the foreign adversary with the full aid and assistance of ity) of entrusting the carriage of these proceedings and,
such of the victims or their legal advisers as are in a po- in particular, the power of settling it out of Court, to the
sition to offer any such assistance. Though Section 3 Union of India. It was contended that the union is itself a
denies the claimants the benefit of being eo nominee joint tort-feasor (sued as such by some of the victims)
parties in such suits or proceedings, Section 4 preserves with an interest (adverse to the victims) in keeping down
to them substantially all that they can achieve by pro- the amount of compensation payable to the minimum so
ceeding on their own. In other words, while seeming to as to reduce its own liability as a joint tort-feasor. It seems
deprive the claimants of their right to take legal action to us that this contention is misconceived. As pointed
on their own, it has preserved those rights, to be exer- out by Mukharji, C.J., the Union of India itself is one of
cised indirectly. A conjoint reading of Sections 3 and 4 the entities affected by the gas leak and has a claim for
would, in our opinion, therefore, show that there has been compensation from the UCC quite independent of the
no real total deprivation of the rights of the claimants to other victims. From this point of view, it is in the same
enforce their claim for damages in appropriate proceed- position as the other victims and, in the litigation with
ings before any appropriate forum. There is only a re- the UCC, it has every interest in securing the maximum
striction of this right which, in the circumstances, is to- amount of compensation possible for itself and the other
tally reasonable and justified. The validity of the Act is, victims. It is, therefore, the best agency in the circum-
therefore, not liable to be challenged on this ground. stances that could be looked up to for fighting the UCC
on its own as well as on behalf of the victims. The sug-
The next angle from which the validity of the provision gestion that the Union is a joint tort-feasor has been
is attacked is that the provision enabling the Government stoutly resisted by the learned Attorney General. But,
to enter into a compromise is bad. The argument runs even assuming that the Union has some liability in the
thus: The object of the legislation can be furthered only matter, we fail to see how it can derive any benefit or
if it permits the Government to prosecute the litigation advantage by entering into a low settlement with the
more effectively and not if it enables the Government to UCC. As is pointed out later in this judgement and by
withdraw it or enter into a compromise. According to Mukharji, C.J., the Act and Scheme thereunder have pro-
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vided for an objective and quasi-judicial determination this case before they were approved by the Court. This
of the amount of damages payable to the victims of the aspect is dealt with later.
tragedy. There is no basis for the fear expressed during
the hearing that the officers of the Government may not One of the contentions before us was that the UCC and
be objective and may try to cut down the amounts of UCIL are accountable to the public for the damages
compensation, so as not to exceed the amount received caused by their industrial activities not only on a basis
from the UCC. It is common ground and, indeed, the of strict liability but also on the basis that the damages to
learned Attorney General fairly conceded, that the set- be awarded against them should include an element of
tlement with the UCC only puts an end to the claims punitive liability and that this has been lost sight of while
against the UCC and UCIL and does not in any way af- approving of the proposed settlement. Reference was
fect the victims ‘rights, if any, to proceed against the made in this context to M.C. Mehta’s case (AIR 1987
Union, the State of Madhya Pradesh or the Ministers and SC 1086) (supra). Whether the settlement should have
officers thereof, if so advised. If the Union and these taken into account this factor is, in the first place, a moot
officers are joint tort-feasors, as alleged, the Union will question. Mukharaji, C.J. has pointed out - and we are
not stand to gain by allowing the claims against the UCC inclined to agree - that this is an “uncertain province of
to be settled for a low figure. On the contrary it will be the law” and it is premature to say whether this yard-
interested in settling the claims against the UCC at as stick has been, or will be, accepted in this country, not to
high figure as possible so that its own liability as a joint speak of its international acceptance which may be nec-
tort-feasor (if made out) can be correspondingly reduced. essary should occasion arise for executing a decree based
We are, therefore, unable to see any vitiating element in on such a yardstick in another country. Secondly, whether
the legislation insofar as it has entrusted the responsibil- the settlement took this into account and, if not, whether
ity not only of carrying on but also of entering into a it is bad for not having kept this basis in view are ques-
settlement, if thought fit. tions that touch the merits of the settlement with which
we are not concerned. So we feel we should express no
Nor is there basis for the contention that the Act enables opinion here on this issue. It is too far-fetched, it seems
a settlement to be arrived at without a proper opportu- to us, to contend that the provisions of the Act permit-
nity to the claimants to express their views on any pro- ting the Union of India to enter into a compromise should
posals for settlement that may be mooted. The right of be struck down as unconstitutional because they have
the claimant under Sec. 4 to put forward his suggestions been construed by the Union of India as enabling it to
or to be represented by a legal practitioner to put forth arrive at such settlement.
his own views in the conduct of the suit or other pro-
ceeding certainly extends to everything connected with The argument is that the Act confers a discretionary and
the suit or other proceeding. If, in the course of the pro- enabling power in the Union to arrive at a settlement but
ceedings there should arise any question of compromise lays down no guidelines or indications as to the stage at
or settlement, it is open to the claimants to oppose the which, or circumstances in which, a settlement can be
same and to urge the Central Government to have regard reached or the type of settlement that can be arrived at;
to specific aspects in arriving at a settlement. Equally it the power conferred should, therefore, be struck down
is open to any claimant to employ a legal practitioner to as unguided, arbitrary and uncanalised. It is difficult to
ventilate his opinions in regard to such proposals for set- accept this contention. The power to conduct a litiga-
tlement. The provisions of the Act, read by themselves, tion, particularly in a case of this type, must, to be effec-
therefore, guarantee a complete and full protection to tive, necessarily carry with it a power to settle it at any
the rights of the claimants in every respect. Save only stage. It is impossible to provide statutorily any detailed
that they cannot file a suit themselves, their right to ac- catalogue of the situations that would justify a settle-
quire redress has not really been abridged by the provi- ment or the basis or terms on which a settlement can be
sions of the Act. Sections 3 and 4 of the Act properly arrived at. The Act, moreover, cannot be said to have
read, in our opinion, completely vindicate the objects conferred any unguided or arbitrary discretion to the
and reasons which compelled Parliament to enact this Union in conducting proceedings under the Act. Suffi-
piece of legislation. Far from abridging the rights of the cient guidelines emerge from the Statement of Objects
claimants in any manner, these provisions are so worded and Reasons of the Act which makes it clear that the aim
as to enable the Government to prosecute the litigation and purpose of the Act is to secure speedy and effective
with the maximum amount or resources, efficiency and redress to the victims of the gas leak and that all steps
competence at its command as well as with all the as- taken in pursuance of the Act should be for the imple-
sistance and help that can be extended to it by such of mentation of the object. Whether this object has been
those litigants and claimants as are capable of playing achieved by a particular settlement will be a different
more than a mere passive role in the litigation. question but it is altogether impossible to say that the
Act itself is bad for the reason alleged. We, therefore,
But then, it is contended, the victims have had no oppor- think it necessary to clarify, for our part, that we are not
tunity of considering the settlement proposals mooted in called upon to express any view on the observations in
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CHARAN L AL SAHU V U NION OF INDIA
Mehta’s case (AIR 1987 SC 1086) and should not be say that the Act would be bad if it does not provide for
understood as having done so. payment of such compensation by the Government irre-
spective of what may happen in the suit is to impose on
Shri Shanti Bhushan, who supported the Union’s stand the State an obligation higher than what flows from its
as to the validity of the Act, however, made his support being subrogated to the rights of the victims. As we agree
conditional on reading into its provisions an obligation that the Act and the Scheme thereunder envisage interim
on the part of the Union to make interim payments to- relief to the victims, the point is perhaps only academic.
wards their maintenance and other needs consequent on But we felt that we should mention this as we are not in
the tragedy, until the suits filed on their behalf ultimately full agreement with Mukharji, C.J., on this aspect of the
yield tangible results. That a modern welfare State is case.
under an obligation to give succour and all kinds of as-
sistance to people in distress cannot at all be gainsaid. In The next important aspect on which much debate took
point of fact also, as pointed out by the learned Chief place before us was regarding the validity of the Act qua
Justice, the provisions of the Act and Scheme thereun- the procedure envisaged by it for a compromise or set-
der envisage interim payments to the victims; so there is tlement. It was argued that if the suit is considered as a
nothing objectionable in this Act on this aspect. How- representative suit no compromise or settlement would
ever, our learned brother has accepted the argument ad- be possible without notice in some appropriate manner
dressed by Sri Shanti Bhushan which goes one step fur- to all the victims of the proposed settlement and an op-
ther viz. that the Act would be unconstitutional unless portunity to them to ventilate their views thereon (vide
this is read as a major inarticulate premise” underlying Order XXIII, Rule 33, C.P.C.). The argument runs thus:
the Act. We doubt whether this extension would be justi- S. 4 of the Act either incorporates the safeguards of these
fied for the hypothesis underlying the argument is, in the provisions in which event any settlement effected with-
words of Sri Shanti Bhushan, that had the victims been out compliance with the spirit, if not the letter, of these
left to fend for themselves, they would have had an im- provisions would be ultra vires the Act. Or it does not, in
mediate and normal right of obtaining compensation from which event, the provisions of Section 4 would be bad as
the Union Carbide” and, as the legislation has vested their making possible an arbitrary deprivation of the victims’
rights in this regard in the Union, the Act should be con- rights being inconsistent with, and derogatory of, the
strued as creating an obligation on the Central Govern- basic rules established by the ordinary law of the land
ment to provide interim relief. Though we would em- viz. the Code of Civil Procedure. We are inclined to take
phatically reiterate the plight of it subjects in such a situ- the view that it is not possible to bring the suits brought
ation is a matter of imperative obligation on the part of under the Act within the categories of representative ac-
the State and not merely ‘a matter of fundamental hu- tion envisaged in the Code of Civil Procedure. The Act
man decency’ as Judge Keenan put it, we think that such deals with a class of action which is sui generis and for
obligation flows from its character as a welfare State and which a special formula has been found and encapsuled
would exist irrespective of what the Statute may or may in Section 4. The Act divests the individual claimants of
not provide. In our view the validity of the Act does not their right to sue and vests it in the Union. In relation to
depend upon its explicitly or implicitly providing for suits in India, the Union is the sole plaintiff, none of the
interim payments. We say this for two reasons. In the others are envisaged as plaintiffs or respondents. The
first place, it was, and perhaps still is, a moot question victims of the tragedy were so numerous that they were
whether a plaintiff suing for damages in tort would be never defined at the stage of filing the plaint nor do they
entitled to advance or interim payments in anticipation need to be defined at the stage of a settlement. The liti-
of a decree. That was, indeed, the main point on which gation is carried on by the State in its capacity, not ex-
the interim orders in this case were challenged before actly the same as but somewhat analogous to that of a
this Court and, in the context of the events that took place, “parens patriae”. In the case of a litigation by a karta of
remains undecided. It may be mentioned here that no a Hindu undivided family or by a guardian on behalf of
decided case was brought to our notice in which interim a ward, who is non-sui juris, for example, the junior mem-
payment was ordered pending disposal of an action in bers of the family or the wards, are not to be consulted
tort in this country. May be there is a strong case for before entering into a settlement. In such cases, the Court
ordering interim payments in such a case but, in the ab- acts as guardian of such persons to scrutinise the settle-
sence of full and detailed consideration, it cannot be as- ment and satisfy itself that it is in the best interest of all
sumed that, left to themselves, the victims would have concerned. If it is later discovered that there has been
been entitled to a “normal and immediate” right to such any fraud or collusion, it may be open to the junior mem-
payment. Secondly, even assuming such right exists, all bers of the family or the wards to called the karta or guard-
that can be said is that the State, which put itself in the ian to account but, barring such a contingency, the set-
place of the victims, should have raised in the suit a de- tlement would be effective and binding. In the same way,
mand for such interim compensation - which it did - and the Union as “parens patriae” would have been at liberty
that it should distribute among the victims such interim to enter into such settlement as it considered best on its
compensation as it may receive from the defendants. To own and seek the Court’s approval therefor.
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However, realizing that the litigation is truly fought on has been pointed out that even when the issue regarding
behalf and for the benefit of innumerable, though not the interim relief was debated in the Courts below, at-
fully identified, victims the Act has considered it neces- tempts were made to settle the whole litigation. The
sary to assign a definite role to the individual claimants claimants were aware of this and they could - perhaps
and this is spelt out in Section 4. This Section directs- should - have anticipated that similar attempts would be
made in this Court also. Though certain parties had been
(i) that the Union shall have due regard to any matters associated with the conduct of the proceedings in the
which such person may require to be urged with re- trial Court - and the trial Judge did handsomely acknowl-
spect to his claim; and edge their contribution to the proceedings - they were
apparently not alert enough to keep a watching brief in
(ii) that the Union shall, if such person so desires, per- the Supreme Court, may be under the impression that
mit at the expense of such person, a legal practitioner the appeal here was concerned only with the quantum of
of his choice to be associated in the conduct of any interim relief. One set of parties was present in the Court
suit or other proceeding relating to his claim. but, apart from praying that he should be forthwith paid
a share in the amount that would be deposited in Court
This provision adequately safeguards the interests of in- by the UCC in pursuance of the settlement, no attempt
dividual victims. It enables each one of them to bring to appears to have been made to put forward a contention
the notice of the Union any special features or circum- that the amount of settlement was inadequate or had not
stances which he would like to urge in respect of any taken into account certain relevant considerations. The
matter and if any such features are brought to its notice Union also appears to have been acting on the view that
the Union is obliged to take it into account. Again, the it could proceed ahead on its own both in its capacity as
individual claimants are also at liberty to engage their “parens patriae” as well as in view of the powers of at-
own counsel to associate with the State counsel in con- torney held by it from a very large number of the victims
ducting the proceedings. If the suits in this case had pro- though the genuiness of this claim is now contested be-
ceeded, in the normal course, either to the stage of a de- fore us. There was a day’s interval between the enuncia-
cree or even to one of settlement the claimants could tion of the terms of the settlement and their approval by
have kept themselves abreast of the developments and the Court. Perhaps the Court could have given some more
the statutory provisions would have been more than ad- publicity to the proposed settlement in the newspapers,
equate to ensure that the points of view of all the victims radio and television and also permitted some time to lapse
are presented to the Court. Even a settlement or compro- before approving it, if only to see whether there were
mise could not have been arrived at without the Court any other points of view likely to emerge. Basically
being apprised of the views of any of them who chose to speaking, however, the Act has provided an adequate
do so. Advisedly, the statute has provided that though opportunity to the victims to speak out and if they or the
the Union of India will be the dominus litus in the suit, counsel engaged by some of them in the trial Court had
the interests of all the victims and their claims should be kept in touch with the proceedings in this Court, they
safeguarded by giving them a voice in the proceedings would have most certainly made themselves heard. If a
to the extent indicated above. This provision of the stat- feeling has gained ground that their voice has not been
ute is an adaptation of the principle of O.I, R. 8 and of O. fully heard, the fault was not with the statute but was
XXIII, R. 38 of the Code of Civil Procedure in its appli- rather due to the developments leading to the finaliza-
cation to the suits governed by it and, though the extent tion of the settlement when the appeal against the in-
of participation allowed to the victims is somewhat dif- terim order was being heard in this Court.
ferently enunciated in the legislation, substantially speak-
ing, it does incorporate the principles of natural justice One of the points of view on which considerable empha-
to the extent possible in the circumstances. The statute sis was laid in the course of the arguments was that in a
cannot, therefore, be faulted, as has been pointed out case of this type the offending parties should be dealt
earlier also, on the ground that it denies the victims an with strictly under the criminal law of the Land and that
opportunity to present their views or places them at any the inclusion, as part of the settlement, of a term requir-
disadvantage in the matter of having an effective voice ing the withdrawal of the criminal prosecutions launched
in the matter of settling the suit by way of compromise. was totally unwarranted and vitiates the settlement. It
has been pointed out by Mukharji, C.J., - and we agree -
The difficulty in this case has arisen, as we see it, be- that the Act talks only of the civil liability of, and the
cause of a fortuitous circumstance viz. that the talks or proceedings against, the UCC or UCIL or others for dam-
compromise were mooted and approved in the course of ages caused by the gas leak. It has nothing to say about
the hearing of an appeal from an order for interim pay- the criminal liability of any of the parties involved.
ments. Though compromise talks had been in the air right Clearly, therefore, this part of the settlement comprises
from the beginning of this episode, it is said that there a term which is outside the purview of the Act. The va-
was an element of surprise when they were put forward lidity of the Act cannot, therefore, be impugned on the
in Court in February, 1989. This is not quite correct. It ground that it permits - and should not have permitted -
224
CHARAN L AL SAHU V U NION OF INDIA
the withdrawal of criminal proceedings against the de- are prima facie inclined to agree with him that there are
linquents. Whether in arriving at the settlement, this as- good reasons why the settlement should not be set aside
pect could also have been taken into account and this on the ground that the principles of natural justice has
term included in it, is a question concerning the validity been violated, quite apart from the practical complica-
of the settlement. This is a question outside the terms of tions that may arise as the result of such an order, we
reference to us and we, therefore, express no opinion in would not express any final opinion on the validity of
regard thereto. the settlement but would leave it open to be agitated, to
the extent permissible in law, in the review petition pend-
145. A question was mooted before us as to whether the ing before this Court.
actual settlement - if not the statutory provision - is li-
able to be set aside on the grounds that the principles of There is one more aspect which we may perhaps use-
natural justice have been flagrantly violated. The merits fully refer to in this context. The scheme of the Act is
of the settlement as such are not an issue before us and that on the one hand the Union of India pursues the liti-
nothing we say can or should fetter the hands of the Bench gation against the UCC and UCIL: on the other all the
hearing a review petition which has already been filed, victims of the tragedy are expected to file their claims
from passing such orders thereon as it considers appro- before the prescribed authority and have their claims for
priate. compensation determined by such authority. Certain in-
firmities were pointed out on behalf of the petitioners in
Our learned brother, however, has, while observing that the statutory provisions enacted in this regard. Our
the question referred to us is limited to the validity of the learned brother had dealt with these aspects and given
Act alone and not the settlement, incidentally discussed appropriate directions to ensure that the claims will be
this aspect of the case too. He has pointed out that jus- gone into by a quasi judicial authority (unfettered by
tice has in fact been done and that all facts and aspects executive prescriptions of the amounts of compensation
relevant for a settlement have been considered. He has by categorizing the nature of injuries) with an appeal to
pointed out that the grievance of the petitioners that the an officer who has judicial qualifications. In this manner
order to this Court did not give any basis for the settle- the scheme under the Act provides for a proper determi-
ment has since been sought to be met by the order passed nation of the compensation payable to the various claim-
on 4th May, 1989 giving detailed reasons. This shows ants. Claims have already been filed and these are being
that the Court had applied its mind fully to the terms of scrutinised and processed. A correct picture as to whether
the settlement in the light of the data as well as all the the amount of compensation for which the claims have
circumstances placed before it and had been satisfied that been settled is meager, adequate or excessive will emerge
the settlement proposed was a fair and reasonable one only at that stage when all the claims have been proc-
that could be approved. In actions of this type, the Court’s essed and their aggregate is determined. In these circum-
approval is the true safety valve to prevent unfair settle- stances, we feel that no useful purpose will be served by
ments and the fact is that the highest Court of the land a post-decisional hearing on the quantum of compensa-
has given thought to the matter and seen it fit to place its tion to be considered adequate for settlement.
seal of approval to the settlement. He has also pointed
out that a post-decisional hearing in a matter like this For these reasons, it would seem more correct and proper
will not be of much avail. He has further pointed out that not to disturb the orders of 14-15 February, 1989 on the
a review petition has already been filed in the case and is ground that the rule of natural justice have not been com-
listed for hearing. The Court has already given an assur- plied with, particularly in view of the pendency of the
ance in its order of May 4, 1989, that it will only be too review petition.
glad to consider any aspects that may have been over-
looked in considering the terms of the settlement. Can it 146 Before we conclude, we would like to add a few
be said, in the circumstances, that there has been a fail- words on the state of the law of torts in this country.
ure of justice which compels us to set aside the settle- Before we gained independence, on account of our close
ment as totally violative of fundamental rights? Mukharji, association with Great Britain, we were governed by the
C.J., has pointed out that the answer to this question common law principles. In the field of torts, under the
should be in the negative. It was urged that there is a common law of England, no action could be laid by the
feeling that the maxim: “Justice must not only be done dependants or heirs of a person whose death was brought
but must also appear to be done” has not been fully com- about by the tortious act of another on the maxim actio
plied with and that perhaps, if greater publicity had at- personalis moritur cum persona, although a person in-
tended the hearing, many other facts and aspects could jured by a similar Act could claim damages for the wrong
have been highlighted resulting in a higher settlement or done to him. In England this situation was remedied by
no settlement at all. That feeling can be fully ventilated the passing of the Fatal Accidents Act, 1846, popularly
and that deficiency can be adequately repaired, it has known as Lord Campbell’s Act. Soon thereafter the In-
been pointed out by Mukharji, C.J., in the hearing on the dian Legislature enacted the Fatal Accidens Act, 1855.
review petition pending before this Court. Though we This Act is fashioned on the lines of the English Act of
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
1846. Even though the English Act has undergone a sub- is highlighted in the present case:
stantial change, our law has remained static and seems a
trifle archaic. The magnitude of the gas leak disaster in (a) Shri Garg has alleged that the processes in the Bhopal
which hundreds lost their lives and thousands were Gas Plant were so much shrouded in secrecy that
maimed, not to speak of the damage to livestock, flora neither the composition of the deadly gas that es-
and fauna, business and property, is an eye opener. The caped nor the proper antidote therefor were known
nation must learn a lesson from this traumatic experi- to anyone in this country with the result that the steps
ence and evolve safeguards at least for the future. We are taken to combat its effects were not only delayed
of the view that the time is ripe to take a fresh look at the but also totally inadequate and ineffective. It is nec-
outdated century old legislation which is out of tune with essary that this type of situation should be avoided.
modern concepts. The Government should therefore insist, when grant-
ing license to a transnational company to establish
While it may be a matter for scientists and techni- its industry here, on a right to be informed of the
cians to find solutions to avoid such large scale disas- nature of the processes involved so as to be able to
ters, the law must provide an effective and speedy rem- take prompt action in the event of an accident.
edy to the victims of such torts. The Fatal Accidents Act,
on account of its limited and restrictive application, is (b) We have seen how the victims in this case have been
hardly suited to meet such a challenge. We are, there- considerably handicapped on account of the fact that
fore, of the opinion that the old antiquated Act should be the immediate tort-feasor was the subsidiary of a
drastically amended or fresh legislation should be en- multi-national with its Indian assets totally inad-
acted which should, inter alia, contain appropriate pro- equate to satisfy the claims arising out of the disas-
visions in regard to the following matters: ter. It is, therefore, necessary to evolve, either by in-
ternational consensus or by unilateral legislation,
(i) The payment of a fixed minimum compensation on steps to overcome these handicaps and to ensure (i)
a “no-fault liability” basis (as under the Motor Vehi- that foreign corporations seeking to establish an in-
cles Act), pending final Adjudication of the claims dustry here, agree to submit to the jurisdiction of
of a prescribed forum; the Courts in India in respect of actions for tortious
acts in this country; (ii) that the liability of such a
(ii) The creation of a special forum with specific power corporation is not limited to such of its assets (or the
to grant interim relief in appropriate cases; assets of its affiliates) as may be found in this coun-
try, but that the victims are able to reach out to the
(iii)The evolution of a procedure to be followed by such assets of such concerns anywhere in the world; (iii)
forum which will be conducive to the expeditious that any decree obtained in Indian Courts in compli-
determination of claims and avoid the his degree of ance with due process of law is capable of being
formalism that attaches to proceedings in regular executed against the foreign corporation, its affili-
courts; and ates and their assets without further procedural hur-
dles, in those other countries.
(iv) A provision requiring industries and concerns en-
gaged in hazardous activities to take out compul- 147. Our brother, K.N. Singh, J., has in this context dealt
sory insurance against third party risks. at some length with the United Nations Code of Con-
duct for Multinational Corporations which awaits ap-
In addition to what we have said above, we should like proval of various countries. We hope that calamities like
to say that the suggestion made of our learned the one which this country has suffered will serve as cata-
brother, K.N. Singh, J., for the creation of an Indus- lysts to expedite the acceptance of an international code
trial Disaster Fund (by whatever name called) de- on such matters in the near future.
serves serious consideration. We would also endorse
high suggestion that the Central Government will 148. With these observations, we agree with the order
be well advised if, in future, it insists on certain safe- proposed by the learned Chief Justice.
guards before permitting a transnational company
to do business in this country. The necessity of such
safeguards, at least in the following two directions,
Order accordingly.
226
CHARAN L AL SAHU V U NION OF INDIA
AIR 1990 SUPREME COURT 273
(FROM: AIR 1988 NOC 50: 1988 MPIJ 540)
R.S. PATHAK, C.J.:E.S. VENKATA-RAMIAH, RANGANATH MISRA.
M.N. VENKATACHALIAH AND N.D. OJHA, JJ.
C.A. Nos. 3187 and 3188 of 1988 with
S.L.P. (Civil) No.13080 of 1988, I)/-14-15-2-1989,
5-4-1989 and 4,5-1989.
UNION CARBIDE CORPORATION — Appellant
v.
UNION OF INDIA AND OTHERS — Respondents
Torts - Compensation to victims of mass disaster - pany and 500 million US dollars made by the Attor-
Quantification - Factors to be taken into considera- ney General of India. The Court also examined cer-
tion - Bhopal Gas Leak Disaster - Ordinary standards tain materials available on record including the fig-
for determination of compensation for fatal accident ures mentioned in the pleadings, the estimate made
actions discarded - U.S. Dollar 470 Millions (approxi- by the High Court and also certain figures referred to
mately Rs.750/= crores) awarded as damages after in the course of the arguments. The ordinary stand-
allocating sums to different categories of victims such ards for awarding the compensation in fatal accident
as fatal cases, seriously injured etc. - Need for evolv- actions were discarded which if applied would have
ing national policy to protect national interest from limited the aggregate of compensation payable in fa-
such hazardous pursuit of economic gains also stressed tal cases to a sum less than Rs.70/= crores in all. The
by Supreme Court. Court estimated the number of fatal cases at 3000
where compensation could range from Rs.1 lakh to
Bhopal Gas Leak - Compensation - Determination. Rs.3 lakhs. This would account for Rs.70/=crores,
nearly 3 times higher than what would, otherwise, be
Damages were sought on behalf of victims of Bhopal awarded in comparable cases in motor vehicles acci-
Gas Leak mass disaster. The Supreme Court consid- dent claims. A sum of Rs.500 crores approximately
ered it a compelling duty, both judicial and human, to was thought of as allocable to the fatal cases and 42,000
secure immediate relief to the victims. The Court ex- cases of such serious personal injuries leaving behind
amined the prima facie material as to the basis of quan- in their trail total or partial incapacitation either of
tification of a sum which, having regard to all the cir- permanent or temporary character. It was considered
cumstances including the prospect of delays inherent that some outlays would have to be made for special-
in the judicial process in India and thereafter in the ized institutional medical treatment for cases requir-
matter of domestication of the decree in the United ing such expert medical attention and for rehabilita-
States for the purpose of execution and directed that tion and after care. Rs.25/- crores for the creation of
470 million US dollars, which upon immediate pay- such facilities was envisaged. Such cases of claims
ment and with interest over a reasonable period, pend- apparently pertaining to serious cases of permanent
ing actual distribution amongst the claimants, would or temporary disabilities but are cases of a less seri-
aggregate very nearly to 500 million US dollars or its ous nature, comprising claims for minor injuries, loss
rupee equivalent of approximately Rs.750/= crores be of personal belongings, loss of live-stock etc., for
made the basis of the settlement. In doing so one of which there was a general allocation of Rs.225/- crores.
the important considerations was the range disclosed Moreover, the Court also took into consideration the
by the offers and counter offers which was between general run of damages in comparable accident claim
426 million US dollars made by the Carbide Com- cases and in cases under workmen’s compensation
227
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
laws. The broad allocations made are higher than those (3) To enable the effectuation of the settlement, all
awarded or awardable in such claims. civil proceedings related to and arising out of the
Bhopal Gas disaster shall hereby stand transferred
(Paras 18, 20, 23, 28, 30, 32, 33, 35, 37) to this Court and shall stand concluded in terms
of the settlement, and all criminal proceedings
The Supreme Court lastly observed that there is need related to and arising out of the disaster shall stand
to evolve a national policy to protect national inter- quashed wherever these may be pending.
ests from such ultra-hazardous pursuits of economic
gains and that jurists, technologists and other experts A memorandum of settlement shall be filed before us
in economics, environmentology, futurology, sociol- tomorrow setting forth all the details of the settlement
ogy and public health etc. should identify areas of to enable consequential directions, if any, to issue.
common concern and help in evolving proper criteria
which may receive judicial recognition and legal sanc- 3. We may record that we are deeply indebted to
tion. (Para 42) learned counsel for the parties for the dedicated as-
sistance and the sincere co-operation they have offered
Cases Referred: Chronological Paras the Court during the hearing of the case and for the
manifest reasonableness they have shown in accept-
AIR 1987 SC 1086 28, 4— ing the terms of settlement suggested by this Court.
Mr. Anil B. Dewan, Sr. Advocate, Mr. J.B. Dadachanji, ORDER D/ - 15th Feb. 1989
Mr. A.K. Verma, Advocate with him, for Appellant:
Mr. K. Parasaran, Attorney General, Mr. A. 4. Having heard learned counsel for the parties, and
Nariarputhan, Miss A. Subhashini and Mr. C.I. Sahen, having taken into account the written memorandum
Advocates, with him, for Respondents. filed by them, we make the following order further to
our order dated 14 February, 1989 which shall be read
ORDER D/ - 14th Feb. 1989 with and subject to this order:
Having given our careful consideration for these sev- 1. Union Carbide India Ltd., which is already a party
eral days to the facts and circumstances of the case in numerous suits filed in the District Court at Bhopal,
placed before us by the parties in these proceedings, and which have been stayed by an order dated 31 De-
including the pleadings of the parties, the mass of da— cember, 1985 of the District Court, Bhopal, is joined
placed before us, the material relating to the proceed- as a necessary part in order to effectuate the terms and
ings in the Courts in the United States of America, the conditions of our order dated 14 February, 1989 as
offers and counter-offers made between the parties at supplemented by this order.
different stages during the various proceedings, as well
as the complex issues of law and fact raised before us 2. Pursuant to the order passed on 14 February, 1989
and the submissions made thereon, and in particular the payment of the sum of U.S.$ 470 Millions (Four
the enormity of human suffering occasioned by the Hundred and Seventy Millions) directed by the Court
Bhopal Gas disaster and the pressing urgency to pro- to be paid on or before 31 March, 1989 will be made
vide immediate and substantial relief to victims of the in the manner following:
disaster, we are of opinion that the case is pre-emi-
nently fit for an overall settlement between the parties (a) A sum of U.S. $425 Millions (Four Hundred and
covering all litigation claims, rights and liabilities re- Twenty Five Millions) shall be paid on or before
lated to and arising out of the disaster and we hold it 23 March 1989 by Union Carbide Corporation to
just equitable and reasonable to pass the following the Union of India, less U.S. $ 5 Millions already
order: paid by the Union Carbide Corporation pursuant
to the order dated 7 June, 1985 of Judge Keenan
2. We order: in the Court proceedings taken in the United States
of America.
(1) The Union Carbide Corporation shall pay a sum
of US Dollars 470 millions (Four hundred and sev- (b) Union Carbide India Ltd. will pay on or before 23
enty millions) to the Union of India in full settle- March, 1989 to the Union of India the rupee
ment of all claims, rights and liabilities related to equivalent of U.S. $ 45 Millions (Forty Five Mil-
and arising out of the Bhopal Gas disaster. lions) at the exchange rate prevailing at the date
of payment.
(2) The aforesaid sum shall be paid by the Union Car-
bide Corporation to the Union of India on or be- (c) The aforesaid payments shall be made to the Un-
fore 31 March, 1989. ion of India as claimant and for the benefit of all
228
UNION CARBIDE CORPORATION V. UNION OF INDIA AND OTHERS
victims of the Bhopal Gas Disaster under the Terms of Settlement Consequential to the
Bhopal Gas Leak Disaster (Registration and
Processing of Claims) Scheme, 1985, and not as Directions and Orders passed by this
fines, penalties, or punitive damages.
Honourable Court
3. Upon full payment of the sum referred to in para-
graph 2 above: 1. The parties acknowledge that the order dated Feb-
ruary 14, 1989 as supplemented by the order dated
(a) The Union of India and the State of Madhya February 15, 1989 disposes of in its entirety all pro-
Pradesh shall take all steps which may in future ceedings in Suit No.113 of 1986. This settlement shall
before necessary in order to implement and give finally dispose of all past, present and future claims,
effect to this order including but not limited to causes of action and civil and criminal proceedings
ensuring that any suits, claims or civil or criminal (of any nature whatsoever wherever pending) by all
complaints which may be filed in future against India Citizens and all public and private entities with
any Corporation, Company or person referred to respect to all past, present and future deaths, personal
in this settlement are defended by them and dis- injuries, health effects, compensation, losses, damages
posed of in terms of this order. and civil and criminal complaints of any nature what-
soever against UCC, Union Carbide India Limited,
(b) Any such suits, claims or civil or criminal pro- Union Carbide Eastern, and all of their subsidiaries
ceedings filed or to be filed before any Court or and affiliates as well as each of their present and former
authority are hereby enjoined and shall not be pro- directors, officers, employees, agents representatives,
ceeded with before such Court or authority ex- attorneys, advocates and solicitors arising out of, re-
cept for dismissal or quashing in terms of this or- lating to or connected with the Bhopal Gas Leak Dis-
der. aster, including past, present and future claims, causes
of action and proceedings against each other. All such
4. Upon full payment in accordance with the Court’s claims and causes of action whether within or outside
directions: India of Indian citizens, public or private entities are
hereby extinguished, including without limitation each
(a) The undertaking given by Union Carbide Corpo- of the claims filed or to be filed under the Bhopal Gas
ration pursuant to the order dated 30 November, Leak Disaster (Registration and Processing of Claims)
1986 in the District Court, Bhopal shall stand dis- Scheme 1985, and all such civil proceedings in India
charged, and all orders passed in Suit No.113 of are hereby transferred to this Court and are dismissed
1986 and/or in revision therefrom shall also stand with prejudice, and all such criminal proceedings in-
discharged. cluding contempt proceedings stand quashed and ac-
cused deemed to be acquitted.
(b) Any action for contempt initiated against counsel
or parties relating to this case and arising out of 2. Upon full payment in accordance with the Court’s
proceedings in the Courts below shall be treated directions the undertaking given by UCC pursuant to
as dropped. the order dated November 30, 1986 in the District
Court, Bhopal, stands discharged, and all orders passed
5. The amounts payable to the Union of India under in Suit No.113 of 1986 and/or in any Revision
these orders of the Court shall be deposited to the credit therefrom, also stand discharged.
of the Registrar of this Court in a Bank under direc-
tions to be taken from this Court. ORDER D/ - 5th April, 1989
This order will be sufficient authority for the Regis- 6. Having considered the circumstances that various
trar of the Supreme Court to have the amount trans- proceedings are pending in the Court in relation to the
ferred to his credit which is lying unutilized with the Bhopal Gas Disaster which have an important bear-
Indian Red Cross Society pursuant to the direction ing on the settlement between the Union of India and
from the International Red Cross Society. the Union Carbide Corporation embodied in an order
dated February 14, 1989 read with other order dated
6. The terms of settlement filed by learned counsel February 15, 1989, including the Writ Petitions chal-
for the parties today are taken on record and shall form lenging the vires of the Bhopal Gas Leak Disaster
part of our order and the record. (Registration and Processing of Claims) Act, 1985
which question the right of the Union of India to the
5. The case will be posted for reporting compliance terms of our order dated February 24, 198— conse-
on the first Tuesday of April, 1989. quential orders, including orders on the affidavits of
229
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
John Macdonald dated Ma— 31, 1989 and C.P. Lal for immediate neutralization of its effects.
dated April 3, 19— filed by the Union Carbide Cor-
poration and the Union Carbide India Ltd. respectively, 10. It is unnecessary for the present purpose to refer,
these appeals and in the suit are deferred and it is or- in any detail, to the somewhat meandering course of
dered that the Union Carbide Corporation will con- the legal proceedings for the recovery of compensa-
tinue to be subject to the jurisdiction of the Courts in tion initiated against the multi-national company ini-
India until further orders. tially in the Courts in the United States of America
and later in the District Court at Bhopal in Suit No.113
7. During the course of argument before us, it tran- of 1986. It would suffice to refer t the order dated 4
spired that allegations have been made in some of the April, 1988: (reported in AIR 1988 NOC 50) of the
documents filed before us that attempts were made to High Court of Madhya Pradesh which, in modifica-
settle the dispute between the Union Carbide Corpo- tion of the interlocutory order dated 17 December,
ration and the Union of India in respect of compensa- 1987 made by the learned District Judge, granted an
tion to be paid to the victims involved in the Bhopal interim compensation of Rs.250 crores. Both the
Gas Disaster at U.S. 350 Million dollars and towards Union of India and the Union Carbide Corporation
the expenses of the Government in the sum of U.S. appealed against that order.
100 million dollars. It seems necessary that the Un-
ion of India and the Union Carbide Corporation should 11. This Court by its order dated 14 February, 1989
file respective affidavits indicating the precise terms made in those appeals directed that there be an overall
of proposals made from time to time outside the Court settlement of the claims in the suit, for 470 million
in regard to the settlement of the claims. The affidavit US dollars and termination of all civil and criminal
of the Union of India shall contain specific details in proceedings. The opening words of the order said:
regard to the quantum of compensation, the time frame
for payment, and other particulars suggested in the “Having given our careful consideration for these
proposals and mentioning specifically the persons several days to the facts and circumstances of the
concerned who suggested the quantum and particu- case placed before us by the parties in these pro-
lars and/or were concerned in the negotiations, whether ceedings, including the pleadings of the parties, the
mass of data placed before us, the material relating
belonging to the Government or otherwise. The Un-
to the proceedings n the Courts in the United States
ion of India will keep ready in its possession all the of America, the offers and counter-offers made be-
relevant documents on the basis of which the aver- tween the parties at different stages during the vari-
ments are made in the affidavit filed by it, so that such ous proceedings, as well as the complex issues of
documents may be produced as and when this Court law and fact raised before us and the submissions
calls upon the said Union of India to do so before it. made thereon, and in particular the enormity of hu-
man suffering occasioned by the Bhopal Gas Disas-
8. Three weeks are allowed to the Union of India and ter and the pressing urgency to provide immediate
the Union Carbide Corporation for filing the afore- and substantial relief to victims of the disaster, we
are of opinion that the case is pre-eminently fit for
said affidavits. The matters will now come up on May
an overall settlement between the parties covering
2, 1989 for further orders. all litigations, claims, rights and liabilities related to
and arising out of the disaster .....” (Emphasis sup-
ORDER D/ - 4th May, 1989 plied)
9. The Bhopal Gas Leak tragedy that occurred at mid- 12. It appears to us that the reasons that persuaded
night on 2nd December, 1984, by the escape of deadly this Court to make the order for settlement should be
chemical fumes from the appellant’s pesticide-factory set out, so that those who have sought a review might
was a horrendous industrial mass disaster, unparalleled be able effectively to assist the Court in satisfactorily
in its magnitude and devastation and remains a ghastly dealing with the prayer for a review. The statement of
monument to the dehumanizing influence of inherently the reasons is not made with any sense of finality as to
dangerous technologies. The tragedy took an imme- the infallibility of the decisions; but with an open mind
diate toll 6660 innocent human lives and left tens of to be able to appreciate any tenable and compelling
thousands of innocent citizens of Bhopal physically legal or factual infirmities that may be brought out,
impaired or affected in various degrees. What added calling for remedy in Review under Art.137 of the
grim poignance to the tragedy was that the industrial- Constitution.
enterprise was using Methyl Iso-cyanate, a lethal toxic
poison, whose potentiality for destruction of life and 13. The points on which we propose to set out brief
biotic-communities was, apparently, matched only by reasons are the following:
the lack of a prepackage of relief procedures for man-
agement of any accident based on adequate scientific (a) How did this Court arrive at the sum of 470 mil-
knowledge as to the ameliorative medical procedures lion US dollars for an over-all settlement?
230
UNION CARBIDE CORPORATION V. UNION OF INDIA AND OTHERS
(b) Why did the Court consider this sum of 470 mil- 17. It is indeed a matter for national introspection
lion US dollars as ‘just, equitable and reasonable’? that public response to the great tragedy which affected
a large number of poor and helpless persons limited
(c) Why did the Court not pronounce on certain im- itself to the expression of understandable and against
portant legal questions of far reaching importance the industrial enterprise but did not channel itself in
said to arise in the appeals as to the principles of any effort to put together public supported relief fund
liability of monolithic, economically entrenched so that the victims were not left in distress, till the
multi-national companies operating with inher- final decision in the litigation. It is well known that
ently dangerous technologies in the developing during the recent drought in Gujarat, the devoted ef-
countries of the third world - questions said to be forts of public spirited persons mitigated, in great
of great contemporary relevance to the democra- measure, the loss of cattle-wealth in the near famine
cies of the third-world? conditions that prevailed.
14. There is yet another aspect of the Review pertain- 18. This Court, considered it a compelling duty, both
ing to the part of the settlement which terminated the judicial and humane, to secure immediate relief to the
criminal proceedings. The questions raised on the victims. In doing so, the Court did not enter upon
point in the Review-petitions, prima facie, merit con- any forbidden ground. Indeed, efforts had earlier been
sideration and we should, therefore, abstain from say- made in this direction by Judge Keenan in the United
ing anything which might tend to pre-judge this issue States and by the learned District Judge at Bhopal.
one way or the other. What this Court did was in continuation of what had
already been initiated. Even at the opening of the ar-
15. The basis consideration motivating the conclu- guments in the appeals, the Court had suggested to
sion of the settlement was the compelling need for learned counsel on both sides to reach a just and fair
urgent relief. The suffering of the victims has been settlement. Again, when counsel met for re-schedul-
intense and unrelieved. Thousands of persons who ing of the hearings the suggestion was reiterated. The
pursued their own occupations for an humble and hon- response of learned counsel on both sides was posi-
est living have been rendered destitute by this ghastly tive in attempting a settlement, but they expressed a
disaster. Even after — years of litigation, basic ques- certain degree of uneasiness and skepticism at the pros-
tions of fundamentals of the law as to liability of the pects of success in view of their past experience of
Union Carbide Corporation and the quan— of dam- such negotiations when, as they stated, there had been
ages are yet being debated. These of course, are im- uninformed and even irresponsible criticism of the
portant issues which need to be decided. But, when attempts at settlement. The learned Attorney General
thousands of innocent citizens were in near destitute submitted that even the most bona fide, sincere and
condition without adequate subsistantial needs of food devoted efforts at settlement were likely to come in
and medicine and with every coming morning haunted for motivated criticism.
by the spectre of death and continued agony, it would
be heartless abstention, if — possibilities of immedi- 19. The Court asked learned counsel to make avail-
ate sources of relief were not explored. Considera- able the particulars of offers and counter offers made
tions of excellence and niceties of legal principles were on previous occasions for a mutual settlement.
greatly over-shadowed by the pressing problems of Learned counsel for both parties furnished particulars
very survival for a large number of victims. of the earlier offers made for an overall settlement and
what had been considered as a reasonable basis in that
16. The Law’s delays are, indeed, proverbial. It has behalf. The progress made by previous negotiations
been the unfortunate — of judicial process that even was graphically indicated and those documents form
ordinary case where evidence consists of a few docu- part of the record. Shri Nariman stated that his client
ments and the oral testimony of a few witnesses re- would stand by its earlier offer of Three Hundred and
quire some years to realize the fruits of litigation. This Fifty Million US dollars and also submitted that his
is so even in cases of great and unquestionable ur- client had also offered to add appropriate interest, at
gency such as fatal accident actions brought by the the rates prevailing in the U.S.A., to the sum of 350
dependents. These are hard realities. The present case million US dollars which raised the figure to 426 mil-
is one where damages are sought on behalf of the vic- lion US dollars. Shri Nariman stated that his client
tims in a mass disaster and, having regard to the com- was of the view that that amount was the highest it
plexities and the legal questions involved any person could go up to. In regard to this offer of 426 million
with an unbiased vision would —— the time consum- US dollars the learned Attorney-General submitted that
ing prospect for — course of the litigation in its so- he could not accept this offer. He submitted that any
journ through the various Courts, both in India and sum less than 500 million US dollars would not be
lately United States. reasonable. Learned counsel for both parties stated
231
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
that they would leave it to the Court to decide what the important considerations was the range disclosed
should be the figure of compensation. The range of by the offers and counter offers which was between
choice for the Court in regard to the figure was, there- 426 million US dollars and 500 million US dollars.
fore, between the maximum of 426 million US dol- The Court also examined certain materials available
lars, offered by Shri Nariman and the minimum of 500 on record including the figures mentioned in the plead-
million US dollars suggested by the learned Attorney- ings, the estimate made by the High Court and also
General. certain figures referred to in the course of the argu-
ments.
20. In these circumstances, the Court examined the
prima facie material as to the basis of quantification 24. There are a large number of claims under the Act.
of a sum which, having regard to all the circumstances In the very nature of the situation, doubts that a size-
including the prospect of delays inherent in the judi- able number of them are either without any just basis
cial process in India and thereafter in the matter of or were otherwise exaggerated could not be ruled out.
domestication of the decree in the United States for It was, therefore, thought not unreasonable to proceed
the purpose of execution and directed that 470 mil- on some prima facie undisputed figures of cases of
lion US dollars, which upon immediate payment and death and of substantially compensable personal inju-
with interest over a reasonable period, pending actual ries. The particulars of the number of persons treated
distribution amongst the claimants, would aggregate at the hospitals was an important indicator in that be-
very nearly to 500 million US dollars or its rupee half. This Court had no reason to doubt the bona fides
equivalent of approximately Rs. 750/- crores which of the figures furnished by the plaintiff itself in the
the learned Attorney-General had suggested, be made pleadings as to the number of persons suffering seri-
the basis of the settlement. Both the parties accepted ous injuries.
this direction.
25. From the order of the High Court and the admit-
21. The settlement proposals were considered on the ted position on the plaintiff’s own side, a reasonable,
premise that Government had the exclusive statutory prima facie, estimate of the number of fatal cases and
authority to represent and act on behalf of the victims serious personal injury cases was possible to be made.
and neither counsel had any reservation as to this. The The High Court said:
order was also made on the premise that the Bhopal
Gas Leak Disaster (Registration and Processing of “...... In the circumstances, leaving small margin for
Claims) Act, 1985 was a valid law. In the event the the possibility of some of the claims relating to death
Act is declared void in the pending proceedings chal- and personal injuries made by the multitude of claims
lenging its validity, the order dated 14 February, 1989 before the Director of Claims of the State Govern-
ment being spurious, there is no reason to doubt that
would require to be examined in the light of that deci-
the figure furnished by the plaintiff, Union of India
sion. in its amended plaint can be safely accepted for the
purpose of granting the relief of interim payment of
22. We should make it clear that if any material is damages. It has been stated by the plaintiff-Union
placed before this Court from which a reasonable in- of India that a total number of 2660 persons suf-
ference is possible that the Union Carbide Corpora- fered agonizing and excruciating deaths and between
tion had, at any time earlier, offered to pay any sum 30000 to 40000 sustained serious injuries as a result
higher than an out-right down payment of US $ 470 of the disaster .....” (Emphasis supplied)
million dollars, this Court would straightway initiate 26. There is no scope for any doubt that the cases
suo motu action requiring the concerned parties to referred to as those of ‘serious injuries’ include both
show cause why the order dated 14 February 1989 types of cases of permanent total and partial disabili-
should not be set aside and the parties —— to their ties of various degrees as also cases of temporary to-
respective original position. tal or partial disabilities of different damages. The
High Court relied upon the averments and claims in
23. The next question is as to the basis on which this the amended pleadings of the plaintiff, the Union of
Court considered this sum to be a reasonable one. This India, to reach this prima facie finding.
is not independent of its qualification: the idea of rea-
sonableness of the present purpose is necessarily a 27. Then, in assessing the quantum of interim com-
broad and general estimate in the context of a settle- pensation the High Court did not adopt the standards
ment of the dispute and — on the basis of an accurate of compensation usually awarded in fatal-accidents-
assessment by adjudication. The question is how good actions or personal injury-actions arising under the
or reasonable it is as a settlement, which would avoid Motor Vehicles Act. It is well known that in fatal ac-
delays, uncertainties and assure immediate payment. cident-actions where children are concerned, the com-
The estimate, in the very nature of things, cannot share pensation awardable is in conventional sums ranging
the accuracy of an adjudication. Here again one of from Rs.15,000/- to Rs.30,000/- in each case. In the
232
UNION CARBIDE CORPORATION V. UNION OF INDIA AND OTHERS
present case a large number of deaths was of children ex gratis payments sanctioned by Government. These
of very young age. Even in the case of adults, accord- figures were, it would appear, less than ten thousand.
ing to the general run of damages in comparable cases,
the damages assessed on the usually multiplier-method 30. In the circumstances, as a rough and ready esti-
in the case of income groups comparable to those of mate, this Court took into consideration the prima facie
the deceased persons would be anywhere between findings of the High Court and estimated the number
Rs.80,000/- and Rs.100,000/-. of fatal cases at 3000 where compensation could range
from Rs. 1 lakh to Rs. 3 lakhs. This would account
28. But the High Court discarded, and rightly, these for Rs. 70/- crores, nearly 3 times higher than what
ordinary standards which, if applied, would have lim- would otherwise be awarded in comparable cases in
ited the aggregate of compensation payable in fatal motor vehicles accident claims.
cases to a sum less than Rs.20/- crores in all. The
High Court thought it should adopt the broader prin- 31. Death has an inexorable finality about it. Human
ciple of M.C. Mehta v. Union of India, AIR 1987 SC lives that have been lost were precious and in that sense
1086. Stressing the need to apply such a higher stand- priceless and invaluable. But the law can compensate
ard, the High Court said: the estate of a person whose life is lost by the wrong-
ful act of another only in the way the law is equipped
“As mentioned earlier, the measure of damages pay- to compensate i.e. by monetary compensations calcu-
able by the alleged tort-feaser as per the nature of lated on certain well recognized principles. “Loss to
tort involved in the suit has to be correlated to the the estate” which is the entitlement of the estate and
magnitude and the capacity of the enterprises be- the ‘loss of dependency’ estimated on the basis of capi-
cause such compensation must have a deterrent ef-
talised present-value awardable to the heirs and de-
fect ....” (Emphasis supplied)
pendants are the main components in the computa-
Applying these higher standards of compensation, the tion of compensation in fatal accident actions. But
High Court proceeded to assess damages in the fol- the High Court in estimating the value of compensa-
lowing manner: tion had adopted a higher basis.
“Bearing in mind, the above factors, in the opinion 32. So far as personal injury cases are concerned, about
of this Court, it would not be unreasonable to as- 30000 was estimated as cases of permanent total or
sume that if the suit proceeded to trial the plaintiff- partial disability. Compensation ranging from Rs. 2
Union of India obtain judgement in respect of the lakhs to Rs.50,000/- per individual according as the
claims relating to deaths and personal injuries at least
disability is total or partial and degrees of the latter
in the following amounts: (a) Rs.2 lakhs in each
case of death; (b) Rs. 2 lakhs in each case of total was envisaged. This alone would account for Rs.250/
permanent disability, (c) Rs.1 lakh in each of per- - crores. In another 20,000 cases of temporary total
manent partial disablement; and (d) Rs.50,000/- in or partial disability compensation ranging from Rs.1
each case of temporary partial disablement.” (Em- lakh down to Rs.25000/- depending on the nature and
phasis supplied) extent of the injuries and extent and degree of the tem-
porary incapacitation accounting for a further alloca-
Half of these amounts were awarded as interim com- tion of Rs.100/- crores, was envisaged. Again, there
pensation. An amount of Rs.250/- crores was awarded. might be possibility of injuries of utmost severity in
which case even Rs. 4 lakhs per individual might have
29. The figure adopted by the High Court in regard to to be considered. Rs. 80 crores, additionally for about
the number of fatal cases and cases of serious per- 2000 of such cases were envisaged. A sum of Rs.500
sonal injuries do not appear to have been disputed by crores approximately was thought of as allocable to
anybody before the High Court. These data and esti- the fatal cases and 42,000 cases of such serious per-
mates of the High Court had a particular significance sonal injuries leaving behind in their trail total of par-
in the settlement. Then again, it was not disputed be- tial incapacitation either of permanent or temporary
fore us that the total number of fatal cases was about character.
3000 and of grievous and serious personal injuries, as
verifiable from the records of the hospitals of cases 33. It was considered that some outlays would have
treated at Bhopal was in the neighbourhood of 30,000. to be made for specialized institutional medical treat-
It would not be unreasonable to expect that persons ment for cases requiring such expert medical atten-
suffering serious and substantially compensatable in- tion and for rehabilitation and after care. Rs. 25/-
juries would have gone to hospitals for treatment. It crores for the creation of such facilities was envisaged.
would also appear that within about 6 months of the
occurrence, a survey had been conducted for purposes 34. That would leave another Rs.225/- crores. It is
of identification of cases of death and grievous and true that in assessing the interim compensation the
serious injuries for purposes of distribution of certain High Court had taken into account only the cases of
233
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
injuries resulting in permanent or temporary disabili- laws or on questions of policy or even on what may be
ties total or partial and had not adverted to the large considered wise or unwise; but when one speaks of
number of other claims, said to run into lakhs, filed justice and truth, these words mean the same thing to
by other claimants. all men whose judgement is uncommitted. Of Truth
and Justice, Anato— France said:
35. Such cases of claims do not, apparently, pertain
to serious cases of permanent or temporary disabili- “Truth passes within herself a penetrative force un-
ties but are cases of a less serious nature, comprising known alike to error and falsehood to say truth and
claims for minor injuries, loss of personal belongings, you must understand its meaning. For the beautiful
loss of live-stock etc., for which there was a general words Truth and Justice need not be defined in or-
der to be understood in their true sense. They bear
allocation of Rs.225/- crores. If in respect of these
within them a shining beauty and a heavenly light. I
claims allocations are made at Rs.20,000/-, Rs.15,000/ firmly believe in the triumph of truth and justice.
- and Rs.10,000/- for about 50,000 persons or claims That is what upholds me in time of trial ....”
in each category accounting for about one and half
lakhs more claims the sums required would be nearly 39. As to the remaining question, it has been said that
Rs.225/- crores. many vital juristic principles of great contemporary
relevance to the Third World generally, and to India in
36. Looked at from another angle, if the corpus of particular, touching problems emerging from the pur-
Rs.750/- crores along with the current market rates of suit of such dangerous technologies for economic gains
interest on corporate borrowings, of say 14% or 14_% by multi-nationals arose in this case. It is said that
is spent over a period of eight years it would make this is an instance of lost opportunity to this apex Court
available Rs.150/- crores each year; or even if inter- to give the law the new direction on vital issues emerg-
est alone is taken, about Rs.105 to 110 crores per year ing from the increasing dimensions of the economic
could be spent, year-after-year, perpetually towards exploitation of developing countries by economic
compensation and relief to the victims. forces of the rich ones. This case also, it is said, con-
cerns the legal units to be envisaged, in the vital inter-
37. The court also took into consideration the general ests of the protection of the constitutional rights of
run of damages in comparable accident claim cases the citizenry, and of the environment, on the permissi-
and in cases under workmens compensation laws. The bility of such ultra-hazardous technologies and to pre-
broad allocations made are higher than those awarded scribe absolute and deterrent standards of liability if
or awardable in such claims. The apportionments are harm is caused by such enterprises. The prospect of
merely broad considerations generally guiding the exploitation of cheap labour and of captive-markets,
idea of reasonableness of the overall basis of settle- it is said, induces multi-nationals to enter into the de-
ment. This exercise is not a pre-determination of the veloping countries for such economic-exploitation and
quantum of compensation amongst the claimants ei- that this was eminently an appropriate case for a care-
ther individually or category wise. No individual ful assessment of the legal and Constitutional safe-
claimant shall be entitled to claim a particular quan- guards stemming from these vital issues of great con-
tum of compensation even if this case is found to fall temporary relevance.
within and of the broad categories indicated above.
The determination of the actual quantum of compen- 40. These issues and certain cognate areas of even
sation payable to the claimants has to be done by the wider significance and the limits of the adjudicative
authorities under the Act, on the basis of the facts of disposition of some of their aspects are indeed ques-
each case and without reference to the hypothetical tions of seminal importance. The culture of modern
quantification made only for purposes of an overall industrial technologies, which is sustained on proc-
view of the adequacy of the amount. esses of such pernicious potentialities, in the ultimate
analysis, has thrown open vital and fundamental is-
38. These are the broad and general assumptions un- sues of technology-options. Associated problems of
derlying the concept of ‘justness’ of the determina- the adequacy of legal protection against such exploita-
tion of the quantum. If the total number of cases of tive and hazardous industrial adventurism, and whether
death or of permanent, total or partial , disabilities or the citizens of the country are assured the protection
of what may be called ‘catastrophic’ injuries is shown of a legal system which could be said to be adequate
to be so large that the basic assumptions underlying in a comprehensive sense in such contexts arise. These,
the settlement become wholly unrelated to the reali- indeed, are issues of vital importance and this trag-
ties, the elements ‘of justness’ of the determination edy, and the conditions that enabled it happen, are of
and of the ‘truth’ of its factual foundation would seri- particular concern.
ously be impaired. The ‘justness’ of the settlement is
based on these assumptions of truth. Indeed, there 41. The chemical pesticide industry is a concomitant,
might be different opinions, on the interpretation of and indeed, an integral part, of the Technology of
234
UNION CARBIDE CORPORATION V. UNION OF INDIA AND OTHERS
Chemical Farming. Some experts think that it is time 44. But, in the present case, the compulsions of the
to return from the high risk, resource-intensive, high- need for immediate relief, tens of thousands of suffer-
input, anti-ecological, monopolistic ‘hard’ technology ing victims could not, in our opinion, wait till these
which feeds, and is fed on, its self-assertive, attribute questions, vital though they be, are resolved in the due
to a more human and humane, flexible, eco-conform- course of judicial proceedings. The tremendous suf-
able, “soft” technology with its systemic-wisdom and fering of thousands of persons compelled us to move
opportunities for human creativity and initiative “Wis- into the direction of immediate relief which, we
dom demands” says Schumachher “a new orientation thought, should not be subordinated to the uncertain
of science and technology towards the organic, the gen- promises of the law, and when the assessment of fair-
tle, the non-violent, the elegant and beautiful”. The ness of the amount was based on certain factors and
other view stressing the spectacular success of agri- assumptions not disputed even by the plaintiff.
cultural production in the new era of chemical farm-
ing, with high-yielding strains, points to the break- 45. A few words in conclusion. A settlement has been
through achieved by the Green Revolution with its recorded upon material and in circumstances which
effective response to, and successful management of, persuaded the Court that it was a just settlement. This
the great challenges of feeding the millions. This tech- is not to say that this Court will shut out any impor-
nology in agriculture has given a big impetus to enter- tant material and compelling circumstances which
prises of chemical fertilizers and pesticides. This, say might impose a duty on it to exercise the powers of
its critics, has brought in its trail its own serious prob- review. Like all other human institutions, this court is
lems. The technology-opinions before scientists and human and fallible. What appears to the court to be
planners have been difficult. just and reasonable in that particular context and set-
ting need not necessarily appear to others in the same
42. Indeed, there is also need to evolve a national way. Which view is right, in the ultimate analysis, is
policy to protect national interests from such ultra- to be judged by what it does to relieve the undeserved
hazardous pursuits of economic gains. Jurists, tech- suffering of thousands of innocent citizens of this coun-
nologists and other experts in Economics, try. As a learned author said (Wallace Mendelson:
environmentology, futurology, sociology and health Supreme Court Statecraft - The Role of Law and Men.)
etc. should identify areas of common concern and help
in evolving proper criteria which may receive judicial “In this imperfect legal setting we expect judges to
recognition and legal sanction. clear their endless dockets, uphold the Rule of Law,
and yet not utterly disregard our need for the discre-
43. One aspect of this matter was dealt with by this tionary justice in Plato’s philosopher king. Judges
must be sometimes cautious and sometimes b——
Court in M.C. Mehta v. Union of India (AIR 1987 SC
. Judges must respect both the traditions of the past
1086) (supra) which marked a significant stage in the and the convenience of the present .....”
development of the law. But, at the hearing there was
more than a mere hinge in the submissions of the Un- But the course of the decisions of court cannot be
ion Carbide that in this case the law was altered with reached or altered or determined in agitational pres-
only the Union Carbide Corporation in mind, and was sures. If a decision is wrong the process of correction
altered to its disadvantage even before the case had must be in a manner recognized by law. Here, many
reached this Court. The criticism of the Mehta princi- persons and social action groups claim to speak for
ple, perhaps, ignores the emerging postulates of tor- the victims, quite a few in different voices. The fac-
tious liability whose principal focus is the social-lim- tual allegations on which they rest that approach are
its on economic adventurism. There are certain things conflicting in some areas and it becomes difficult to
that a civilized society simply cannot permit to be done distinguish truth from falsehood and half-truth, and to
to its members, even if they are compensated for their distinguish as to who speaks for whom.
resulting losses. We may note a passage in “Theories
of Compensation” (R.F. Goodin: Oxford Journal of 46. However, all of those who invoked the corrective-
Legal Studies, 1989, p.57.). processes in accordance with law shall be heard and
the court will do what the law and the course of jus-
“It would, however, be wrong to presume that as a tice requires. The matter concerns the interests of a
society can do anything we like to people, just so large number of victims of a mass disaster. The Court
long as we compensate them for their losses. Such directed the settlement with the earned hope that it
a proposition would mistake part of the policy uni- would do them good and bring them immediate relief,
verse for the whole. The set of policies to which it
for tomorrow might be too late for many of them. But
points ... policies that are ‘permissible, but only with
compensation ...’ is bound on the one side by a set of the case equally concerns the credibility of, and the
policies that are ‘permissible, even without compen- public confidence in the judicial process, owing to the
sation’ and on the other side by a set of policies that pre-settlement procedures being limited to the main
are ‘impermissible, even with compensation’.” contestants in the appeal the benefit of some contrary
235
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
or supplementary information or material having a we reiterate, must be by procedure recognized by law.
crucial bearing on the fundamental assumption basic Those who trust this Court will not have cause for
to the settlement, have been denied to the court and despair.
that, as a result, serious miscarriage of justice, violat-
ing the constitutional and legal rights of the person
affected, have been occasioned, it will be the endeav-
our of this Court to undo any such injustice. By that, Order accordingly.
236
ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (IN CHAMBERS)
No. 1994 N 1212
Royal Courts of Justice, Strand, London W.C.2.
Tuesday, 11th april, 1995
Before:
MR. JAMES STEWART, Q.C.
(Sitting as a Deputy Judge of the High Court)
B E T W E E N:
ENGLEBERT NGCOBO — (First Plaintiff)
and
ALBERT DLAMINI — (Second Plaintiff)
and
MAKHALADI ANASTASIA CELE
(suing as the adminsitratirix of the
Estate of PETER ZIBONELE CELE) — (Third Defendant)
- and -
THOR CHEMICALS HOLDINGS LTD — (First Defendant)
and
THOR CHEMICALS (UK) LTD. — (Second Defendant)
and
DESMOND JOHN COWLEY — (Third Defendant)
MR. ROBIN STEWART, Q.C. and MR. JAMES CAMERON
(instructed by Messrs. Leigh Day & Co.)
appeared on behalf of the Plaintiffs.
MR. SIMON HAWKESWORTH, Q.C. and MR. FRANCIS TREASURE (instructed by
Messrs Vaudrey Osborne & Mellor) appeared on behalf of the Defendants.
Transcribed from the shorthand Notes
of Messrs. Harry Counsell & Co., 61 Carey Street,
London WC2A 2JG. Tel: 071.242.9346
237
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
JUDGEMENT reason of the provisions of section 7 of the (South Afri-
can) Workmen’s Compensation Act 1941. This prohib-
(As Approved) its actions by an employee against his employer for inju-
ries sustained at work. Instead, irrespective of fault, an
THE JUDGE: By their summons dated the 19th January employee is entitled to claim Workmen’s Compensation
1995 the three Defendants to this action, Thor Chemi- form the Commissioner who administers a Workmen’s
cals Holdings Limited, Thor Chemicals (UK) Ltd. and Compensation Fund. Each of these workmen availed
Desmond John Cowley, seek a stay of these proceedings themselves of that entitlement: Mr. Ngcobo received the
on the ground that England is not an appropriate forum equivalent of £4,685, Mr. Dlamini an amount which is
for the trial of this action, and South Africa is clearly or not known, and Mr. Cele the equivalent of £4,358. The
distinctly a more appropriate forum. Commissioner is empowered under Section 43 of the
same Act to pay an increased amount of compensation if
Two other grounds for a stay no longer fall to be deter- there is negligence on the part of the employer which is
mined. At the outset of this hearing, I gave leave for the causally connected with the exposure (see page 86 of
action to be re-constituted with the widow/administratrix the trial bundle before me).
of the first Plaintiff henceforth to be the first Plaintiff,
which cured an allegation of lack of the first Plaintiffs’ No information has been available to me in this hearing
capacity to sue. Ground three, which alleged that the as to whether an application under Section 43 has been
Plaintiff’s claims are not doubly actionable, is no longer made and, if so, potentially the sort of figure which could
pursued. reasonably be expected to be awarded.
The factual background to this claim is as follows. Notwithstanding the prohibition under Section 7, Sec-
Englebert Ngcobo, Albert Dlamini and Peter Zibonele tion 8 of the same Act expressly permits a workman to
Cele were all temporary workers at the Cato Ridge plant sue a third part tortfeasor such as these Defendants in
of Thor Chemicals, South Africa (Proprietary) Ltd. in South Africa in respect of injuries sustained at work. It
Natal, South Africa. This company is a wholly owned has not been argued in these proceedings that an action
subsidiary of the first Defendant. The third Defendant is in South Africa would not lie against these Defendants
and was at all material times the director of the first De- for events in South Africa. Mr. Hawkesworth, Q.C. on
fendant and a director of the second Defendant. The behalf of these Defendants has undertaken to me that
second Defendant was a wholly owned subsidiary of the these Defendants would submit to jurisdiction in South
first Defendant. The Plaintiffs allege that this company Africa. However, as the Plaintiffs’ case is that negli-
was responsible for the Group’s Margate operation. gence by all three Defendants in England as well as South
Africa caused the exposure to mercury, they have brought
The South African plant, inter alia, manufactured and re- their claims in England against all three Defendants
processed mercury compounds. Mr. Ngcobo worked there whose domiciliary forum is England.
from April 1991 until the 24th January 1992; Mr. Dlamini
from October 1991 until a date in March 1992 and Mr. The Plaintiffs in their re-amended Statement of Claim
Cele from August 1991 until the 31st January 1992. make the following allegations:
There is no dispute that all three in the course of their 1. That the first and second Plaintiffs had a mercury
employment were exposed to hazardous and unsafe quan- processing plant in Margate, England, which was set
tities of mercury, mercury vapour and/or mercury com- up by the third Defendant together with a plant fore-
pounds. This caused Mr.Ngcobo to be ill on the 22nd man/production manager called Bill Smith, both of
February 1992; he was hospitalized on the 26th Febru- whom were servants of the first and second Defend-
ary 1992; he remained in hospital until his death on the ants.
11th February 1995. He was then 55 years of age. His
widow now sues on behalf of his dependents and his es- 2. Between 1981 and 1987 inspectors form the Health
tate as the first Plaintiff. The second Plaintiff, who is and Safety Executive in England reported high lev-
now 27 years of age, became ill in early April 1992; he els of mercury in the air and in the urine of the
was hospitalized on the 16th April 1992 and continues workforce in the Margate plant.
to suffer from a major disability. Mr. Cele became ill in
early February 1992; he was hospitalized on the 3rd 3. In about 1987, the mercury processing operation at
March 1992 and died on the 1st July 1993 at the age of Margate was closed down, having been moved in
22. His mother now sues on behalf of his dependants two stages in 1985 and 1987 to the South African
and his estate as third Plaintiff. subsidiary at Cato Ridge.
None of these Plaintiffs could have sued the employer, 4. That all three Defendants were responsible for the re-
Thor South Africa (Proprietary) Ltd, in South Africa by search, design, set-up and commissioning of the South
238
ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
African plant and that Bill Smith was sent out to den explosion in the absence of negligence by anyone,
South Africa by the Defendants to assist in the set- but certainly not on the part of these Defendants.
ting up process and in the supervision of plant work-
ers, including Messrs. Ngcobo, Dlamini and Cele. Relevant Law as to Forum Conveniens
5. That all the Defendants and Mr. Smith were well The leading case on forum conveniens is Spiliada Mari-
aware of the potential hazards to health and safety time Corporation v Cansulex Ltd. [1987] 1 AC 460. The
by exposure to high levels of mercury. relevant principles are enunciated in the speech of Lord
Goff and I summarise them as follows:
6. That it was Mr. Smith’s job to ensure that the work-
ers were aware of these hazards in order to ensure: (a) The basic principle is that a stay will only be granted
(a) that safe working practices were in place; (b) on the ground of forum non conveniens where the court
that adequate and properly maintained safety equip- is satisfied that there is some other available forum
ment was used; (c) that workers were properly having competent jurisdiction in which the case may
trained in safety; and (d) that the health and safety be tried more suitably in the interests of all the parties
of workers was properly monitored. and in the interests of justice (474D-476C).
7. That the negligence of all three Defendants has (b) The burden of proof rests on the Defendant to per-
caused the exposure of the three temporary workers suade the court to exercise its discretion to grant a
to hazardous levels of mercury. stay. The standard of proof is to show there is an-
other forum which is “clearly or more distinctly more
In all, some twenty-five particulars of negligence are appropriate” than the English forum (477B).
pleaded which allege in broad terms the following:
(c) In determining (b) above, proper regard is to be paid
(a) that an unsafe system of work was transferred from to the fact that jurisdiction has been founded in Eng-
Margate to South Africa identical to that which was land as of right (477E).
known by the Defendants to be unsafe; that Bill
Smith was incompetent; and that all three Defend- (d) In determining whether there exists some other fo-
ants are vicariously liable for his negligence and that rum which is clearly more appropriate, the court will
tortious liability therefore exists in England; first look to see what factors there are which point
in the direction of another forum. The natural fo-
(b) that in South Africa torts were committed for which rum is that with which the action has the most “real
all three Defendants, in England, are vicariously li- and substantial connection”. Connecting factors will
able; include: (i) factors of convenience, expense and
expense such as availability of witnesses (477G,
(c) that the Defendants installed plant in South Africa 478A-B); (ii) the law governing the relevant trans-
which could not be operated safely; the compressor action; (iii) where the parties reside or carry on
was incapable of decontaminating the air and the business.
design of the protective hoods and air supply was
faulty, so that the air breathed in was heavily con- (e) If the court concludes at that stage that there is no
taminated with mercury; other available forum which prima facie is clearly
more appropriate for the trial of the action it will
(d) that there were unsafe working practices, including ordinarily refuse a stay (478B-C).
a failure to monitor mercury urine levels. This should
be viewed in the light of their knowledge of the sort (f) If, however, the court concludes at that stage that
of level which was hazardous in Margate. there is some other available forum which prima
facie is clearly more appropriate for the trial of the
In summary, therefore, the Plaintiffs allege that the De- action, it will ordinarily grant a stay unless there are
fendants’ liability arises out of research and development circumstances by reason of which justice requires
in England, the export of unsafe plant and processes from that a stay should nevertheless not be granted.
England to South Africa and the commissioning in South
Africa of processes, plant and practices which to their In this inquiry the court should consider all the cir-
knowledge were hazardous. This caused, it is said, the cumstances of the case, including circumstances
workmen to be subjected to severe chronic exposure to which go beyond those taken into account when con-
hazardous levels of mercury and mercuric compounds sidering connecting factors with other jurisdictions.
over a substantial period of time, which in turn caused One such factor can be the fact that if established
personal injury and loss. The defence I am told will be objectively by cogent evidence the Plaintiff will not
that the Cato Ridge plant was sabotaged causing a sud- obtain justice in the foreign jurisdiction. The bur-
239
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
den here shifts to the plaintiff (478C-D). action against it; it would only be in unusual circum-
stances that it could be described as clearly inappro-
(g) As to the extent to which a legitimate personal or priate.”
juridical advantage may be relevant, the mere fact It is pointed out that the trend of modern conventions is
that the Plaintiff has such an advantage in proceed- to sue a defendant in his domiciliary forum.
ings in England cannot be decisive; the fundamen-
tal principle is where the case may be tried suitably Professor Stern’s book on the Conflict of Laws, page
for the interests of all the parties and for the ends of 151 was quoted to me.
justice (482B, 478E and 482E).
The Application of these Principles to the Factual Issues
Thus damages on a higher scale, a more appropriate pro- in the Present Case.
cedure of discovery, a power to award interest as a gen-
eral rule in England should not deter a court from grant- The Defendants’ Submissions.
ing a stay simply because the Plaintiff will be deprived
of such an advantage, provided that the court is satisfied The following submissions were made to me by Mr.
that substantial justice will be done in the appropriate Simon Hawkesworth, Q.C. on behalf of the Defendants
available forum. based on affidavits sworn on these Defendants’ behalf.
Since the Spiliada case in 1987, there have been a number 1. The nationality of the three workers was at the ma-
of cases in which the principles therein set out have been terial time South African.
applied. In Banco Atlantico v BBME (1990) 2 L1.L.R.
504 the plaintiff Spanish bank sued the defendant Eng- 2. The location of the exposure was Natal, South Af-
lish bank as endorsers or guarantors of promissory notes rica; their employer was a South African company,
which had been given in payment for the purchase of regulated by the health and safety laws of South Af-
half the shares in the Spanish corporation pursuant to a rica.
written agreement made in Spain. The proper law of the
contract was Spanish. Leggatt J. granted a stay; the 3. Insofar therefore as any torts were committed, they
Court of Appeal reversed him. Bingham L.J. at p.508 were committed in South Africa.
said the following:
4. The links with England are tenuous and insubstan-
“Do BBME have to show that Sharjah is clearly a more tial and will not in any event, even if proved, result
appropriate forum than this for the determination of in the action being substantially less inconvenient
those issues having regard to the interests of all parties or expensive to try here.
and the achievement of justice?
“In considering this question it is necessary to remem- 5. There is no evidence that the first Defendant exer-
ber that Banco have established jurisdiction here, in the cised any operational control over the plant in South
form of BBME’s incorporation, as of right. Very clear Africa or that the third Defendant was acting in South
and weighty grounds must be shown for refusing to ex- Africa on behalf of the first Defendant. The annual
ercise jurisdiction. A balance of convenience in favour report of the first Defendant holding company for
of the foreign forum is not enough. The interests of jus- the year ending 31st December 1993 shows that the
tice are paramount.” first Defendant did not trade. It is not suggested by
the Plaintiffs (paragraph 14 of the Statement of Claim
At p.510 Bingham L.J. went on to say: was deleted by amendment) that the first Defendant
is liable for the actions of the South African com-
“Although the judge described BBME’s connection pany. The only basis upon which vicarious liability
with this forum as ‘not a fragile one’, it is in truth very is alleged is that the first Defendant is vicariously
solid indeed. It must be rare that a corporation resists liable for the acts and/or omissions of the third De-
suit in its domiciliary forum. Rarely would this Court fendant and/or Smith.
refuse jurisdiction in such case. In my judgement very
clear and weighty grounds for doing so were not
shown.” 6. There is no reliable evidence that either the third De-
fendant or Smith when in South Africa were work-
Chief Justice Gleeson, in an Australian case, Goliath ing for the first Defendant: they were working for
Portland Cement Co. Ltd. v Bengtell [1994] 33 New Thor South Africa (Proprietary) Ltd.
South Wales Law reports page 414 at page 419 G said
the following: 7. There is no evidence that the second Defendant had
any responsibility for the running of the Margate
“The place where a large corporation has its headquar- plant.
ters is a reasonable place in which to commence an
240
ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
8. Transferred from Margate to South Africa were cus- tices in South Africa. This is of far greater signifi-
tomers which created a fifteen per cent. uplift in pro- cance, it is said, than any HSE findings in Margate
duction. The plant transferred was insignificant and years before the South African exposure. Either the
was merely absorbed into the works already in full working practices in South Africa gave rise to this
operation. exposure or they did not. The Margate evidence, it
is said, will not assist.
9. The operation in Margate was not intrinsically un-
safe. Improvement notices were served by the Health 17. Insofar as there is evidence that the third Defendant
& Safety Executive relating to such things as chang- was responsible for the setting up of the plant in
ing facilities and hygiene. Had the system been un- South Africa, he lives in both South Africa and Eng-
safe, as the Plaintiffs allege, it would have been shut land; his domicile in England is not established.
down.
18. Professor Davies’ report of the 15th April 1992 re-
10. The Margate evidence is therefore peripheral to the lied on by the Plantiffs shows at page 263 of the
main issue. It is remote in time from the exposure bundle: “All environmental measurements have been
in South Africa. Decisions made in 1987 cannot be made in house” and at page 264: “All estimations
other than marginally relevant, if at all, to what took of mercury in urine have been carried out in-house.”
place in South Africa in 1992. This demonstrates the South African nature of the
evidence relied upon in support of this claim.
11. Smith’s evidence at page 233 of the bundle to the
inquiry held by the South African Department in 19. A comparison between the pleaded case and the af-
1993 was equivocal upon the issue of whether when fidavit of Mr. Meeran, the solicitor acting for the
in South Africa he was working for the South Afri- Plaintiffs (pages 128-130 with pages 157-158) dem-
can company or the first Defendant. Mr. Cowley’s onstrates the tenuous nature of the link between the
most recent affidavit is to the effect that Smith was breaches of duty in England and damage in South
working for the South African company. Africa. In substance, the vast majority of allega-
tions, it is said, are of negligence in South Africa
12. The fact that there have been two previous hearings and therefore the closest connections with the torts
on the subject-matter of this case, i.e. the inquiry pleaded is South Africa.
plus a criminal trial (see page 205), is a compelling
factor in favour of South Africa being the most con- 20. In the premises, the Plaintiffs’ choice of England as
venient forum. The evidence has twice been re- a forum in which to sue was not reasonable, given
hearsed. The Defendants have a full team of law- the Plaintiffs’ right to compensation in South Africa
yers in South Africa. already exercised, their right to obtain increased com-
pensation under Section 43, and the fact of admis-
13. The Plaintiffs’ concentration upon Margate is a cos- sions of negligence by the South African company
metic exercise. The exposure took place in South in the criminal trial (p.205). The mere fact that com-
Africa; South Africa is the natural forum for the pensation may be less in South Africa is of little, if
Plaintiffs as well as the Defendants. There are no any, relevance. Their system is not to be criticised,
connecting factors in the real and substantial sense it is said, simply because it is different and because
to displace South Africa as the natural forum. The South Africa has a no fault compensation scheme
Plaintiffs are latching on an English element to a which may not compensate victims as fully as in the
South African issue. United Kingdom.
14. There is nothing to prevent the first and/or the sec- 21. The Defendants would submit to South African ju-
ond Defendant being sued in South Africa. The only risdiction and can be sued in South Africa pursuant
reason the Plaintiffs are suing here is to get higher to Section 8.
damages and because they have got legal aid.
22. The disadvantage to the Defendants of being sued
15. Mr. Hawkesworth’s and Mr. Treasure’s searches have in England is the converse of the Plaintiffs’ advan-
not revealed any case where foreign nationals work- tage: it is not a level playing field. The Plaintiffs
ing for a foreign company having an accident in their have legal aid without fear of any order for costs
own country arising out of employment in their own against them.
country ever having successfully sued in England.
23. The practical difficulties and the costs and expense
16. The Plaintiffs have available the evidence of Mr. to the Defendants of the matter being tried in Eng-
Murphy from the South African Manpower Com- land would be immense: the Defendants would have
mission as to the working conditions and the prac- to call approximately ten witnesses from South Af-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
rica (see page 335). They may also call Professor under the heading “The Plaintiffs’ Claim”.
Fraser from Cape Town University in support of the
sabotage theory. All three Plaintiffs will have to be 1. The Plaintiffs cannot sue their employer in South
brought from South Africa. Experts may have to Africa. In order to obtain adequate compensation,
visit South Africa to inspect the site, the plant and they have to sue these Defendants.
the equipment. Witnesses as to quantum will be re-
quired to come from or visit South Africa. Evidence 2. The domiciliary forum of all three Defendants is
as to dependants and their extent will have to be in- England; jurisdiction is founded here as of right.
vestigated in South Africa and given in England. The
cultural and linguistic difficulties of a trial in Eng- 3. It is not for the Defendants to dictate how the Plain-
land will be immense. Defence witnesses will be tiffs should conduct their case. The court must de-
reluctant to come to England and their attendance termine this application on the basis of the case as
cannot be compelled. pleaded; it is not trying the action. Many of the
Defendants’ submissions relate to the merits of the
24. The relevant law to be applied, it is submitted by claim and to the evidence. Furthermore, the plant
Mr. Hawkesworth, would be South African law. The has been revamped, and only the compressor is avail-
substantive cause of action arose in South Africa. able for inspection.
The flexibility spoken of in Boys v Chaplin [1971]
AC 356 should militate in favour of South African 4. The first Defendant is registered in England. Page 1
law being applied in England both as to liability and of the exhibit annexed to Mr. Meeran’s third affida-
quantum. English law was not devised to deal with vit is the first Defendant’s Directors’ Report in which
South African extended families. reference is made to the directors’ “plan to develop
the activities of the group”. This demonstrates the
25. The Defendants may wish to join the doctors who operational control of the first Defendant over the
treated the workmen and the South African Man- activities of the whole group and justifies the first
power Commission as third parties; that can only Defendant being sued.
realistically be done in South Africa.
5. The third Defendant is the chairman of the first and
26. If the Defendants prove the appropriate forum is second Defendants and the majority shareholder of
clearly or distinctly South Africa, the Plaintiffs have the first Defendant, having a controlling interest. In
failed to discharge the burden upon them of show- reality, he is the group. He is British and has a home
ing that a stay should nevertheless not be granted. in England (see page 198). The Plaintiffs were not
The juridical or personal advantage to the Plaintiffs to know (if it be the case) that the second Defendant
of greater damages or legal aid should not be deci- did not control Margate. The letter from the HSE to
sive. The South African company has, in any event, Mr. Murphy of the Department of Manpower in
resolved to pay the three workers or their personal South Africa refers to Thor Chemicals (UK) Ltd. op-
representatives some of the wages which they would erating the Margate site.
have earned.
6. The Margate evidence is crucial to the Plaintiffs’
Legal aid is not a relevant juridical advantage. Insofar case: it demonstrates that the third Defendant knew
as it is a relevant personal advantage, the court must be the problems. Mr. Smith was employed at Margate
guided by the principles set out in Lord Goff’s speech in and was incompetent. The evidence of the Margate
Spiliada. There is nothing inherent in the South African workers will demonstrate the degree of his incom-
system which prevents these Plaintiffs obtaining justice. petence.
The Plaintiffs have already received substantial justice
in their own country and may not have exhausted their 7. Mr. Smith was sent out by the third Defendant to
remedies under Section 43 of the South African Act. South Africa, thereby the first Defendant became vi-
cariously liable for what he did. Crucial to the Plain-
I have dealt at some length with the cogent and power tiffs’ case is the allegation that plant and a system of
submissions of Mr. Hawkesworth, although I have little work which was hazardous and unsafe were trans-
doubt that I have not done them justice. It can be seen, ferred from Margate to Cato Ridge.
however, that the Defendants mounted a formidable ar-
gument in favour of a stay. 8. Paragraphs 30 and 31 of Mr. Moore’s affidavit sworn
on behalf of the Defendants demonstrate the link
The Plaintiffs’ Submissions. between the plant from Margate and Cato Ridge.
The following submissions were made on the Plaintiffs’ 9. Mr. Smith (page 231A plus), in his evidence to the
behalf. To an extent, they have already been referred to inquiry, admitted in terms that when in South Africa
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ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
he was employed by the United Kingdom company, time in the United Kingdom.
not Thor South Africa, and that when there he was
responsible for “putting up the plant” (page 234). 16. The relevant law will be English law both as to quan-
He further admitted that the three workmen worked tum and liability (see Boys v Chaplin [supra],
there under his supervision (page 237). Johnson v Coventry Churchill [1992] 3 All E.R. 14.
10. Other evidence shows the link between the UK com- 17. The Defendants’ assertion that they may well wish
panies and South Africa. Mr. Stephen van der Vyver, to join doctors and the Department of Manpower is
the managing director of Thor South Africa Ltd. said a complete red herring. The reference to delay in
in a video interview that the South African compa- the medical reports at page 265 is not capable of
ny’s technology and process came from the UK (page establishing negligence and, in any event, if a novus
131). The third Defendant said in his evidence to actus interveniens were established it would be a
the inquiry that he was involved in the design of the complete defence.
plant (page 238). Mr. Moore’s affidavit refers at page
323 to the same thing. The first Defendant’s pro- 18. Even if the Defendants succeed in showing that
spectus refers at page 240 to research and develop- clearly the more appropriate forum is South Africa,
ment being carried out “in the United Kingdom”. the Plaintiffs cannot obtain justice there because they
Professor Davies of the South African Centre for Oc- will not get legal aid, nor can the union fund their
cupational Health (pages 261-268) inspected the claim. In effect, the Plaintiffs can sue in England or
plant in South Africa and speaks of “the transfer of not at all. The Plaintiffs will therefore not obtain
hazardous processes” and “the systematic transfer justice in a foreign jurisdiction, which is a paramount
of a hazardous process from one country to another”. consideration.
11. Dr. Magos, a toxicologist who was reporting to the Again, I have little doubt I have not done justice to Mr.
Plaintiffs, refers to the condition of this occupational Robin Stewart, Q.C.’s powerful submissions in this most
exposure being imported from the United Kingdom difficult case.
and to the faulty design of hoods, causing the work-
men to breathe in contaminated air. It will be seen that the central issue here is whether or
not there was a chronic long-term exposure or an acute
12. Dr. Clarkson, another toxicologist, refers to the exposure, as the Defendants submit, arising out of sabo-
symptoms being attributable to “chronic” rather than tage.
acute exposure.
Conclusion
13. The Margate witnesses are therefore crucial, it is said,
in proving the case against these Defendants: if they The conclusion which I have reached is that the Defend-
were not available as witnesses in South Africa, the ants have failed to satisfy me that this case would be
first Defendant could escape liability on the basis that tried more suitably in the interests of all the parties and
the South African company alone was responsible. the ends of justice in South Africa and that South Africa
These witnesses may not be compellable as witnesses is clearly or more distinctly the more appropriate forum.
in South Africa, whereas the Defendants will have The Plaintiffs have, in my judgement, formidable evi-
no difficulty commanding employees of subsidiary dence available to demonstrate a nexus between negli-
companies to come to the United Kingdom. gence in England and the damage which occurred in
South Africa. I accept Mr. Stewart’s submission that at
14. The case, it is said, will turn on expert evidence. If the end of the day the toxicologists will play a major
the toxicology evidence shows the exposure must role in this case upon liability and that South Africa is
have been chronic rather than acute, then the De- not a clearly more appropriate forum for their evidence
fendants’ South African witnesses cannot avail them. than England. If I granted a stay, the Plaintiffs may have
The Plaintiffs’ toxicologists all rely on the fact that difficulty in mounting their case in South Africa insofar
all three workers did not become ill at exactly the as it relates to negligence in England, and there is a grave
same time, which militates against acute exposure danger that justice would not be done.
being responsible. England is just as convenient as
a venue for the trial as South Africa so far as expert These Plaintiffs have sued these Defendants here as of
evidence is concerned. right and I do not find the matters put before me by Mr.
Hawkesworth are sufficiently powerful or grave and
15. The Defendants have not disclosed any available weighty to discharge the burden upon him of satisfying
direct evidence to establish their sabotage theory and me that South Africa is clearly or distinctly the more
insofar as it is viable Mr. Cowley, the third Defend- appropriate forum. Furthermore, I am persuaded that
ant, is an important witness: he lives much of the the trial judge would probably decide to apply English
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
rather than South African law. I also doubt whether the “I have considerable doubt whether the Plaintiffs would
Defendants would have sought to join doctors or the obtain legal aid in South Africa to pursue claims here
Manpower Commission even if this case were tried in [i.e. South Africa] against the three English defendants.
South Africa. Whether or not the evidence demonstrates I consider in particular that there would be little pros-
that Mr. Smith was acting on behalf of the first Defend- pect that legal aid could be provided in relation to the
ant will be a matter for evidence at the trial. There is, considerable costs which must relate to the engagement
however, in my judgment a strongly arguable case that of expert witnesses in the respects detailed by Mr. Meeran
he was. in this affidavit.”
The third Defendant was, on his own admission, involved In his second affidavit, Mr. Gauntlett refers to the pros-
in the setting up of the plant in South Africa and this ju- pect of the Plaintiffs’ obtaining South African legal aid
risdiction is just as convenient for him as South Africa. to pursue their claim as: “not at all good”.
I recognise that there are many advantages in having the Mr. Gauntlett refers to the extent of the funding that
matter tried in South Africa, but I do not consider that would be required and the grossly over-burdened and
the ends of justice would be better served by this action under-funded state of legal aid in South Africa, exacer-
being tried in South Africa. I therefore reject the De- bated by a new constitutional right to legal representa-
fendants’ application for a stay. tion and the demands placed upon funding by the open-
ing up of new and extensive areas of constitutional liti-
I have been specifically asked by counsel to indicate gation. Even if it were right that these Plaintiffs would
whether, had I ruled in favour of the Defendants and or- not obtain legal aid in South Africa, I cannot see that
dered a stay, I would nevertheless have ruled that justice Lord Goff ever envisaged that a plaintiff’s impecunios-
requires that a stay should not be granted, in particular ity would of itself constitute a basis for refusing a stay. I
on the basis that the Plaintiffs have legal aid here which, agree with Mr. Hawkesworth that the Plaintiffs are invit-
in all probability, would not be available in South Af- ing me to extend the principles for the refusal of a stay
rica. The burden in such circumstances would have beyond those envisaged by Lord Goff. There is, in my
shifted to the Plaintiffs. I am not satisfied that in that judgment, nothing inherent in the system in South Af-
event the Plaintiffs have discharged the burden upon rica which prevents these Plaintiffs obtaining justice. The
them. These Plaintiffs have already received some com- mere fact that higher damages may be awarded here
pensation in South Africa under Section 7 of the Work- would not deter me from granting a stay and there is no
men’s Compensation Act and may not have exhausted sufficient evidence before me that substantial justice
their remedies under Section 43 of the same Act. It is would not be done in South Africa. However, for the
pointed out by Mr. Hawkesworth in accordance with the reasons already given, the Defendants have failed to dis-
ratio in the Abidin Daver [1984] AC 398 that in exercis- charge the burden upon them and accordingly this appli-
ing its discretion it is not normally appropriate for the cation for a stay is refused.
court to compare the quality of justice obtainable in a
foreign court which adopts a different procedural sys- MR. CAMERON: May it please you, my Lord, I wish
tem with that obtainable in a similar case and conducted to make a few submissions on costs. Following your
in an English court. judgement, we would of course ask for the Defendants
to pay the Plaintiffs’ costs, but we would like to hand
In Spiliada Lord Goff stated that injustice could not be these considerations on how that is to be done. We would
said to be done if a party were in effect compelled to firstly like to submit that costs should be paid forthwith.
accept one of the well recognised systems of procedural There is a very realistic prospect that there will be come
law in the appropriate foreign forum. In Dicey & Moins large gap of time before this matter is ultimately con-
12th edition chapter 12, page 395, it is pointed out that cluded and whilst it is possible for certain matters to be
there may be cases where there is a risk that justice will paid by the Legal Aid Board, that would put the Legal
not be obtained in a foreign court for ideological or po- Aid Board out of funds for a period of time. We would
litical reasons, or because of the inexperience or ineffi- suggest that this is an appropriate case in which to order
ciency of the judiciary or excessive delay in the conduct that costs be paid forthwith, given that reality: that there
of the business of the court, or the unavailability of ap- will be some gap of time before the matter is resolved.
propriate remedies; but a would-be plaintiff in the Eng-
lish court who wishes to resist a stay of English pro- THE JUDGE: If that was to happen, what would be
ceedings on such a ground must assert it candidly and the prospects if I was to be reversed on appeal of the
support the allegation with positive and cogent evidence. Legal Aid Board paying back to the Defendants the costs
which have been paid over? Is that something which
The evidence as to the unavailability of legal aid in South you have come across in your experience, Mr. Cameron?
Africa is couched by Mr. Gauntlett, the Plaintiffs’ ex-
pert, in these terms. In his first affidavit he says: MR. CAMERON: It is not something I have come
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ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
across. I do not know whether there is any experience Then:
behind me to give you the answer to that. I anticipate
there will be some argument on appeal,but perhaps when “.... in these rules the term ‘the indemnity basis’ in re-
that matter is resolved we can think of an appropriate lation to the taxation of costs shall be construed ac-
period by which costs should be paid. cordingly.”
THE JUDGE: The other order is an order for taxation
THE JUDGE: Was I right in my judgment that what- on the standard basis and that would prejudice you in
ever I decided in this case it was going to the Court of what respect?
Appeal in any event?
MR. CAMERON: In these respects. When taxation is
MR. TREASURE: My Lord, I think it falls to me to ordered on the standard basis ultimately there is a very
answer that question. I anticipate, subject to taking in- high probability that a percentage of those costs will be
structions on the precise form of the judgment, that there taken out of the statutory charge and the court has dis-
will be an appeal. cretion under the exceptional circumstances or where
appropriate to order costs on an indemnity basis in order
THE JUDGE: I am not surprised. It has been a very to avoid an unfairness to the plaintiffs. The unfairness
difficult case and I would welcome the judgment of the arises because the Legal Aid Board obviously must pay
Court of Appeal to see whether they agree with me or out monies which are owed, if you like, to the Plaintiffs
not. but also they tax those on a different basis than those
contributed by the party paying the costs. In the experi-
MR. TREASURE: My Lord, I think I can say that it is ence of those who deal with this type of case, there tends
99 per cent certain that there will be an appeal. to be a difference of between five and twenty per cent, in
the overall costs which eventually are paid. That is taken
THE JUDGE: I can understand that and the reasons from the statutory charge.
for it. I am sorry, Mr. Cameron, I interrupted you.
THE JUDGE: Can we just look at the general note be-
MR. CAMERON: It may well be that when that is con- cause I was aware of the distinction but I just wanted to
firmed that the forthwith part of the costs order can be know its application in this particular case.
clarified and we will know whether we are talking about
something immediately or following the application for MR. CAMERON: I have a couple of authorities which
leave. may assist.
THE JUDGE: It is not as though the Plaintiffs are be- THE JUDGE: What you would say is that this is a most
ing kept out of funds as a result of my ruling, is it? unusual case.
MR. CAMERON: Not at this stage, no. It is a ques- MR. CAMERON: It is a most unusual case.
tion of looking forward over a period of time and under-
standing that the Legal Aid Board would be themselves THE JUDGE: A lot of expense has been incurred in
out of funds if money is not paid on account. having experts and so on.
THE JUDGE: I am inclined to think, Mr. Cameron, that MR. CAMERON: That is right. Your Lordship will ap-
the Legal Aid Board can bear that with such fortitude preciate from the materials that were before you
that it can muster. that an awful lot of information had to be gathered - a lot
of exceptional information had to be gathered and ex-
MR. CAMERON: My next point is that we would ask perts had to be consulted, South African counsel had to
that the costs be paid on theindemnity basis. This arises be consulted. There are one or two matters to which I
out of the discretion accorded to your Lordship under would like to come which will add to our argument that
Order 62/12, which is in Volume 1 of the White Book, this should be one of those cases where indemnity costs
page 1071. are awarded.
We do have exceptional circumstances here and the discre-
“(2) On a taxation on the indemnity basis all costs tion is afforded to your Lordship to grant costs on an in-
shall be allowed except insofar as they are of an unrea- demnity basis. There is no allegation that the Defendants
sonable amount or have be unreasonably incurred and have behaved improperly or there is some misconduct: that
any doubts which the taxing officer may have as to has nothing to do with the argument I am advancing.
whether the costs were reasonably incurred or were
reasonable in amount shall be resolved in favour of
the receiving party ....” THE JUDGE: It would have been surprising if they had
not applied for a stay in the circumstances.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
MR. CAMERON: It is certainly not surprising; how- focus the difference between the parties and it was al-
ever, there are a number of matterswhich have led to ways the understanding of the Plaintiffs’ advisers that
additional costs and expense. For example, there is a this would be a crucial stage.
whole line of argument on double actionability which
was ultimately dropped. Your Lordship will be familiar THE JUDGE: The statutory charge would be a charge
with the Plaintiffs’ submissions: there was a large chunk on any damages received by the Legal Aid Board.
of the Plaintiffs’ submissions which went right at the
death dealing with double actionability. There was an MR. CAMERON: That is right.
awful lot of expert evidence just on the nature of the
double actionability test. THE JUDGE: That is even in the event of their being
successful in the trial of the action.
THE JUDGE: Does the difference between costs on an
indemnity basis and the standard basis affect the fees of MR. CAMERON: Yes.
the persons involved in the case?
THE JUDGE: They would not be able to get that from
MR. CAMERON: I do not think so. I do not see how it the Defendants.
would. It certainly will not affect the Defendants’ op-
portunity to make the usual argument about whether it is MR. CAMERON: Because the costs are effectively dealt
a reasonable cost incurred: they are entirely protected in with in a different way - the costs which come from the
that way before the Taxing Master. There is no differ- Plaintiffs’ side will simply come out of the Legal Aid
ence. The only issue of substance, apart from the odd Fund but not all of those costs can be available.
point which I might want to make about how the case has
proceeded, is the statutory charge. There is a strong prob- THE JUDGE: Which are the ones that cannot?
ability that ultimately the statutory charge would be called
upon to pay a proportion of the Plaintiffs’ costs. If the MR. CAMERON: There are various things to which I
Plaintiffs are ultimately successful, they will lose, on our can take your Lordship.
estimate, between five and twenty per cent of the costs of
this action, which will come off the overall damages. THE JUDGE: Is this opposed, Mr. Treasure?
THE JUDGE: You would say in the context of this case MR. TREASURE: It most certainly is, my Lord, yes.
that that may be a disproportionateamount because the
dependency must in any event relate to the income earned THE JUDGE: How unusual an animal, in your experi-
by workers in South Africa. ence, Mr. Cameron, is the award of costs on an indem-
nity basis as opposed to the standard basis? I have been
MR. CAMERON: Correct. sitting as a deputy judge for a few years and I do not
remember awarding indemnity costs.
THE JUDGE: All of whom were black workers in South
Africa. MR. CAMERON: There is a judgment here which may
be helpful and perhaps I can deal with that.
MR. CAMERON: On very low wages.
THE JUDGE: Yes, of course.
THE JUDGE: Working for a low wage.
MR. CAMERON: It bears on jurisdiction.
MR. CAMERON: That is right. In fact, the levels of
compensation which will be paid out for that measure of THE JUDGE: Would you just allow me to read the note?
damages will be, by our experience, relatively low and The test is one of reasonableness. There is a reference
therefore they will suffer an additional disadvantage by to a case in 1956. It is that of a sensible solicitor, “What
having to pay out relatively high costs for this jurisdic- in the light of his then knowledge was reasonable in the
tion in order to obtain their remedy. interests of his client. Any step taken on the advice of a
properly instructed counsel should rarely be disallowed.y
There are other matters. I do not make the case that there
has been any misconduct by the Defendants, which would MR. CAMERON: There is clearly a range of circum-
be a clear reason for awarding indemnity costs. stances. Mr. Justice Gage in this case to which I
have referred your Lordship, Casey v East Anglian Re-
THE JUDGE: Quite the reverse applies. They were jus- gional Health Authority cites the case of Bowen-Jones v
tified in taking the action they did. Bowen-Jones [1986] 3 AER. He says: “It is sufficient
simply to refer to the headnote in which it is said that the
MR. CAMERON: It was the right point on which to court will normally order costs on the standard basis and
246
ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
will only order costs on an indemnity basis ‘in excep- MR. CAMERON: I have a note, so let me go through it.
tional circumstances’.” “On a standard basis inter partes and legal aid taxation
there are a number of items that in practice are always
In the field of personal injury/environmental claims cross taxed as recoverable against the Legal Aid Fund (on the
over, as we have here, quite frequently these sorts of or- standard basis) as appropriate remuneration for the work
ders are made for precisely these reasons. Those instruct- done on the case but which are not held to be recover-
ing me have had several examples in the last few years able against the paying party (on the same standard ba-
where personal injury cases brought by a particular in- sis). Some of these items are set out in the (now with-
fant or ward of court or those that are essentially going to drawn) Supreme Court Taxing Office practice direction
suffer the same costs reduction because of the various ....”
things that are not going to be recoverable by the plain-
tiff, the court has awarded indemnity costs. Indeed, in THE JUDGE: Do you say that they would be recover-
Casey, for different reasons than we have here in this case able against the Legal Aid Fund?
but under this general heading of exceptional circum-
stances, costs on the indemnity basis were ordered. That MR. CAMERON: Yes.
is at pages 48 and 49 of the judgment. (Same handed) I
was quoting a moment ago from page 49 at line 10. This THE JUDGE: They would then have a charge, you say.
is where the exceptional circumstances test is set out.
MR. CAMERON: That is right. There is a reference
Line 22 is perhaps the most helpful: “The award of such here to an old Court Taxing Office Practise Direction.
costs remains within the discretion of the judge, but in “.... No.3 of the 10 June 1986 and included ‘work done
my judgment there must be some exceptional circum- in connection with the continuation or extension of or
stances .... for the court to make such an order. In my other general considerations relating to Legal Aid, as
judgement there are such exceptional circumstances in distinct from the purposes of the action’ and ‘work done
this case. Having been referred by Mr. Francis to a pas- in compliance with the requirements or the specific au-
sage in the report of Mr. Watson, I am not satisfied that thority of the Law Society .... which in the circumstances
there was any reasonable prospect of the second defend- of the particular case it is unreasonable to recover from
ants maintaining their claim or allegation that the third the paying party’. Although this Practice Direction has
defendant’s conduct acted as a novus actus interveniens. now been withdrawn, its spirit is firmly maintained, in
It seems to me there was no such reasonable prospect practice, by the Taxing Masters, who will almost invari-
and in the circumstances in my judgment Mr. Francis’ ably disallow against the paying party, but allow against
submission that his clients were put to unnecessary costs the Legal Aid Fund ....”
is well founded. Accordingly, upon that basis I propose
to make an order that indemnity costs be paid by the THE JUDGE: The paying party here is the Defendants.
second defendant.”
MR. CAMERON: The Defendants, yes. “... each and
It is our case that, at the very least, on the whole issue of every item of correspondence and each and every tel-
double actionability there were very significant costs ephone call between solicitors and the Legal Aid Office
spent on that issue which need not have been spent. In- - despite the fact that many of these letters and telephone
deed, M. Meeran writes in terms on the 2nd December calls are simply requests for authority to take certain steps
to the Defendants’ solicitors. I will hand a copy of that and associated extensions of Certificates etc.”, and there
to your Lordship. are other items which are not recoverable on this basis.
It is the difference between what the paying party pays
THE JUDGE: Is that the test? Have I simply got to look and what the Legal Aid Board pays. I see that as the
at those areas which you say would not qualify for legal difference.
aid on the standard basis?
Those instructing me remind me the crucial costs which
MR. CAMERON: I would suggest that there are two are not recoverable here are the liaison with the Legal
points here. The major point is that these are excep- Aid Board to satisfy the requirements that they set up in
tional circumstances and tremendous costs were spent order to proceed with the case. The other items which
at an early stage and because of the way they will ulti- are routine matters such as time spent with the client or
mately be taxed there is a very high probability that the next friend, certain items of advice from or conferences/
Plaintiffs will suffer, if they are ultimately successful, in consultations with counsel, costs (in whole or in part) of
their damages in order to account for irrecoverable costs, some of the experts’ reports, costs relating to lines of
whereas they would not if indemnity costs were ordered. enquiry which it was perfectly proper to pursue but in
the end did not result in evidence being served or called.
THE JUDGE: I am just trying to establish which area of
the costs would not be recoverable. THE JUDGE: “Costs (in whole or in part) of some ex-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
pert reports.” I cannot be a great deal more help than that, my Lord,
because the application has caught me by surprise. There
MR. CAMERON: Yes. It is suggested that there are is some commentary in the White Book at page 1050 on
some costs which will not be recovered; for example, if the circumstances in which such an order might be ap-
you amend an expert’s report or go back for further work propriate. It is opposite the reference 62/3/3: “The ef-
that further work may not be recoverable. It is estimated, fect of this rule ....” Your Lordship sees that.
as I have said, that between five and twenty per cent of
the total costs of the case may not be recoverable and THE JUDGE: The Rule in question is —?
that would therefore represent a substantial reduction in
the actual damages awarded to the Plaintiffs for the same MR. TREASURE: It is 3/4. It is Order 62, Rule 3, para-
reasons I discussed before. The statutory charge would graph 4 on page 1048, starting: “The amount of his costs.”
bite into the level of damages if they are to succeed.
THE JUDGE: This is costs on the standard basis.
This is simply a point of experience in these sorts of cases,
taking into account the particular and rather exceptional MR. TREASURE: “The amount of his costs shall be on
circumstances of this case. Therefore, without even the standard basis ....” and then at the end of the
touching upon the minor issue which I have raised, Rule: “.... unless it appears to the court to be appropri-
namely, various points in the Defendants’ case which have ate for the costs to be taxed on the indemnity basis.” My
fallen out of the picture, namely, double actionability, Lord, that is the source of the power to award indemnity
one or two of the tit for tat summonses and these items costs.
which perhaps it would be perfectly proper to ask to be
included in the argument for indemnity costs, the princi- My Lord, there is no guidance in the Rules as to the cir-
pal point is the one relating to the statutory charge and cumstances in which indemnity costs are appropriate,
the ultimate loss the Plaintiffs will suffer because of the but if one then looks at the note at 62/3/3 there is some
way these things are taxed. assistance. There is a reference in the second paragraph
to examples of cases and there is a reference to a case
THE JUDGE: There is no suggestion, sofar as I am there. I am afraid that case is not before the court. “In
aware, that your solicitor was anything other than sensi- Bowen-Jones v Bowen-Jones Mr. Justice Knox consid-
ble or that counsel’s advice was glaringly wrong. ered the two bases of taxation of costs as set out in r.12
and declined to review the basis on which orders for taxa-
MR. CAMERON: Certainly not. I leave those remarks tion should be made in favour of successful litigants, stat-
to you when you are exercising your discretion under ing: ‘It seems to me that there has been a rationalisation
Order 62 in these exceptional circumstances. Of course, of the different bases of taxation ....” I do not think that
I must ask for certificates for leading and junior counsel. is of much assistance to your Lordship. Then there is
the example in the paragraph after that. Perhaps the last
There is a somewhat unusual request, but perhaps it is paragraph is the one that gives such guidance as there is,
one which is particularly appropriate in this case. That the paragraph starting: “The person who takes advan-
is that your Lordship’s judgment be made public. There tage” rule should be altered, but for no doubt very good
is a tremendous interest in this case and there is a number reasons the rule is not altered.
of parties - journalists, the union in South Africa and
various others - who wish to be able to study the judg- THE JUDGE: I think what is being said in this case is
ment and make comment on it in an informed way. That that to the extent to which the
is something which requires your Lordship’s permission.
solicitors have been in touch with the Legal Aid Board
THE JUDGE: Yes, I am most grateful, Mr. Cameron. has been far greater than normal because of the com-
Thank you very much. Now, Mr. Treasure, first of all plexities of foreign experts, double actionability and
I need not worry you on the costs to be paid forthwith. goodness knows what which if someone had slipped on
a pavement in Batley would not apply.
MR. TREASURE: My Lord, I am most grateful. So far
as the question of indemnity costs is concerned, in my MR. TREASURE: My Lord, it is clearly a complicated
experience it is extremely rare that one would get an or- case and there are going to be a lotof costs involved.
der for indemnity costs and one is normally looking at There is nothing particularly exceptional about that, but
the sort of situation where one can point to the other side what I really say is that there is no authority before the
having behaved improperly in some way and it is at that court to suggest that in those circumstances the order for
stage that you make your application, and even then you costs should be anything other than on the standard ba-
will be very lucky if you get it. I do not think I have ever sis. If my learned friend wishes to persuade your Lord-
managed to obtain such an order, although I have often ship to make this exceptional order, then he really ought
asked. to bring some authority to that effect, or if he is arguing
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ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
on first principles then he ought to put the authorities MR. TREASURE: Costs in cause would be an appro-
before the court so that your Lordship can see what the priate order. The third possibility, that of costs re-
principles are. served is one which I would urge you for these reasons.
As far as costs reserved are concerned, your Lordship
THE JUDGE: I must say, I have never before awarded has taken into account the relevance of the Margate evi-
costs on the indemnity basis; I have always or- dence - and that is clearly a matter that weighs, as I un-
dered costs on the standard basis. That was the reason derstand it, considerably with your Lordship - and the
that I asked for guidance on the relevant criteria to deter- expert evidence on the question of whether or not it was
mine between the two. a chronic or an acute incident. It may turn out that the
arguments that have been put before your Lordship,
MR. TREASURE: I am sorry, my Lord, I cannot give which your Lordship has accepted at this comparatively
your Lordship any more assistance. In fairness to my early stage of the trial, may turn out to be false ones.
learned friend, the shortfall is not simply, as I understand
it, in one area. If we take the standard basis where it is THE JUDGE: The goal posts may move.
not legal aid, you get a substantial shortfall, of the order
of twenty per cent or costs that are awarded against the MR. TREASURE: Yes, the Defendants may produce
other side as compared with the amount of costs that are their expert evidence, the Plaintiffsmay consider that
actually allowed between solicitor and client. That is an that is sufficiently strong and worrying to decide that
entirely standard feature of litigation and there is noth- they themselves need to call the evidence from South
ing whatsoever exceptional about that. The fact that in Africa. So it may well be that the assumptions which
the legal aid case a shortfall arises not from the differ- your Lordship has made - and understandably made on
ence between the solicitor and own client basis of taxa- the basis of the evidence in front of you - proves to be
tion but the difference between standard basis and legal falsified by subsequent events. Your Lordship will for-
aid basis is neither here nor there. give me for saying so, but it may well turn out that the
decision to which your Lordship has come has been made
My Lord, so far as the question of costs is concerned, on a false premise. It may be that the premise is subse-
there are three possible orders. Firstly, the Plaintiffs’ costs quently proved to be false and then, looking back with
of the summons in any event. the benefit of hindsight, one would say that the decision
would not have been reached had the full facts been
THE JUDGE: On a standard basis? known.
MR. TREASURE: On a standard basis. Plaintiffs’ costs THE JUDGE: It would have been open to you to put
in any event would mean that win or lose the trial the affidavits in front of me from people in South Africa to
Plaintiffs get the costs of the summons. The costs of the deal with the points that have been raised, would it not?
summons could be costs in cause, and that could be ei- Or would that just have incurred more costs?
ther Plaintiffs’ costs or Defendants’ costs, obviously, so
whoever gets the costs will depend upon the result of the MR. TREASURE: My Lord, there is this problem for
claim. Or costs could be reserved. My Lord, as I under- the Defendants. I am told that they have already in-
stand it, my learned friend will contend that, “The sum- curred £30,000 worth of costs and I suggest it is rather
mons was brought, we have won it and therefore we more than that by now, knowing perfectly well that not a
should have our costs. Costs should follow the event.” penny of those costs are going to be recoverable and
therefore there is every incentive on the Defendants not
My Lord, the argument in relation to costs in cause would to incur huge sums of money investigating facts and in-
go as follows. If you have an interlocutory application structing experts at this stage. I understand that the Plain-
case which is an entirely proper one - and it seems to be tiffs’ bill of costs is of the order of £100,000. Your Lord-
common ground that the application brought by the De- ship will see that the Defendants are extremely reluctant
fendants was entirely proper —— to incur that sort of sum knowing that whatever happens
none of it is going to be recoverable. So, my Lord, there
THE JUDGE: And it was almost inevitable when the is therefore considerable restraint on the Defendants in
action was brought in this country. those circumstances. There are also time constraints in
that, as the Defendants saw the application, it was going
MR. TREASURE: Yes. On that basis, it was an entirely to be decided on a comparatively simple basis. Your
proper application to make. As your Lordship says, it is Lordship will recall that the first affidavit of Mr. Moore
really an incident of the claim being brought and there- was comparatively short and did not recite the evidence
fore the costs of making the application should lie where at any length.
the costs of the claim lie.
THE JUDGE: No-one seemed to envisage this case tak-
THE JUDGE: You say costs in cause. ing as long as it has - I do not know whether I am re-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
sponsible for that - but it was much more difficult than MR. TREASURE: My Lord, I have not had the oppor-
originally envisaged. But the estimate was always a lit- tunity to take instructions from those who will be able to
tle optimistic. assist on what the likely amount of the deduction would
be.
MR. TREASURE: My Lord, it was optimistic once Mr.
Meeran’s second affidavit was sworn. Once it was sworn THE JUDGE: Can I make my observations for the ben-
it became apparent that large amounts of evidence were efit of the Taxing Master if I was to order that costs be
being adduced and we were going to have to go through on the standard basis?
it, but prior to that the Defendants had not foreseen that
such large amounts of evidence would be adduced and MR. TREASURE: Your Lordship has not been invited
therefore, given the financial limitations upon them, they to. The Taxing Master has discretion and expertise in
did not investigate the expert issues more than was nec- deciding what is and what is not proper.
essary.
THE JUDGE: He has not tried it.
THE JUDGE: I was extremely grateful for the detailed
and cogent submissions that were made on both sides. MR. CAMERON: My Lord, I apologise for interrupt-
ing my learned friend, but I only seek to find a practical
MR. TREASURE: I wish I had had a hand in them, my solution to a practical problem, which is why I did not
Lord. advance any arguments of a more emotive kind on the
indemnity costs but simply to deal with the problem we
THE JUDGE: I see the point. Costs reserved is pretty see coming in the way that the judge saw coming in the
unusual in these circumstances, is it not? You have said Casey case, which is the one I have handed up to your
that in your experience indemnity costs would be unu- Lordship, and indeed in many others of this ilk recently.
sual, but are you going to put your hand up and say that That is simply it. I could not say whether it is possible
in these circumstances costs reserved is unusual? to append some note to the costs order which would help
the Taxing Master. I do not know of that being done, but
MR. TREASURE: They are not quite so memorable. in effect that is what we are seeking to achieve through
the indemnity costs order rather than make some state-
THE JUDGE: Do you say the fact that these are South ment of a moral nature.
African plaintiffs who, even if they succeed, will not
receive a substantial amount of damages is irrelevant to THE JUDGE: I am not intending to make any statement
my decision as to whether to award costs on the indem- of a moral nature, it is just that I cannot see any costs
nity basis? Do you say that is something I cannot prop- which have not been reasonably incurred. That is all I
erly take into account or do you say you do not know was going to say.
because you have not had chance to research the authori-
ties? MR. TREASURE: My Lord, one knows that in the
County Court there are specific rules which do en-
MR. TREASURE: All I can say, without having re- title the courts to make orders as to specific items of costs
searched the authorities, is that in my experience I have where they think it is appropriate. I simply cannot say if
never heard of costs being awarded on that basis. there is an equivalent order in the White Book. If your
Lordship is being invited to make an order and your Lord-
THE JUDGE: Mr. Hawkesworth was saying - as you ship would presumably wish to be referred to the au-
are saying - that there has never been a case like this, thority that would enable you to do so. Until your Lord-
insofar as I have held the proper forum for a case involv- ship has seen the bill of costs, it is difficult to know what
ing an accident in South Africa to South African work- is or is not reasonable. I would urge your Lordship to
men employed in South Africa is recoverable in Eng- leave it to the vast experience of the Taxing Master.
land. To that extent, it is extremely unusual. I suppose
there can hardly be any precedent. The case to which my learned friend has referred, Casey,
the learned judge clearly thought that the circumstances
MR. TREASURE: My Lord, it is unusual of its kind but were exceptional. My Lord, it is at page 49, line 22:
it is not at all unusual, I would submit, for there to be a “The award of such costs remains within the discretion
case where a comparatively large sum of costs is going of the judge, but in my judgment there must be some
to be expended by reference to the amount at stake and exceptional circumstances (as set out in Bowen-Jones)
for there, accordingly, to be a substantial shortfall over- for the court to make such an order. In my judgment
all in relation to amounts the Plaintiff will recover. there are such exceptional circumstances in this case.
Having been referred by Mr. Francis to a passage in the
THE JUDGE: It may be beyond twenty per cent in the report of Mr. Watson, I am not satisfied that there was
circumstances of this case. any reasonable prospect of the second defendants main-
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ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
taining their claim or allegation that the third defend- uranium mine in Namibia, as I understand it, and he
ant’s conduct acted as a novus actus interveniens. It sought to bring proceedings over here against RTZ as
seems to me that there was no such reasonable prospect the holding company. My learned friend will correct me
and in the circumstances in my judgment Mr. Francis’ because he knows a great deal more about the case than
submission that his clients were put to unnecessary costs I do. That case, as I understand it, was decided against
is well founded.” the plaintiff. The Plaintiffs’ counsel refused to agree to
that being used as an authority before your Lordship
So what there was, in effect, there was a finding that it because it was in chambers. It is therefore a little rich, if
was entirely unreasonable that the party against whom I may say so, for them, having objected to any publicity
the order for indemnity costs had been made to act as it for a case in which they are involved and which they
had done. There is no such allegation in this case. This lost, now to seek publicity for a case in which they are
case is certainly not an authority for the proposition that involved and which they have now won. My Lord, I
an order for indemnity costs is appropriate and, in the would respectfully suggest that it might be better if the
absence of any other such authority, I would invite your case is going to be appealed - I understand the other case
Lordship not to make that order. is also going to be appealed - that any publicity await the
outcome of the appeals.
My Lord, as far as the question of reserving costs is con-
cerned, it may turn out that had your Lordship seen all THE JUDGE: What you mention now is water under
the evidence that will emerge at trial your Lordship would the bridge, is it not? I suppose each factor of the case
come to a different decision and so, although I accept turns on its own facts, but where is the prejudice which
that it is not an order which is made very often, it may the Defendants will suffer if I was to order that the judg-
on the facts of this case be appropriate. ment I have made in this case be made public? You are
not suggesting that what I have said is going to influence
That is what I say about costs. My Lord, there are two any other judge sitting in the same jurisdiction, are you?
further applications to be made and perhaps your Lord-
ship would like to deal with that issue now. My learned MR. TREASURE: That is dangerous ground.
friend has something else to say.
THE JUDGE: It might be of some persuasive authority
MR. CAMERON: Those instructing me have furnished but very little else.
me with two other authorities on indemnity costs which
may be of assistance. MR. TREASURE: I should be very hesitant to com-
ment on that, my Lord.
THE JUDGE: Have these been disclosed to Mr. Treasure?
THE JUDGE: If you are talking in terms of jurors, there
MR. CAMERON: They have not, my Lord, which is an may be more force in what you have said.
unfairness for him.
MR. TREASURE: It is of little persuasive legal author-
THE JUDGE: He is put at a disadvantage. ity, then that is a reason for not publishing it.
MR. CAMERON: He is put at a disadvantage. It is sim- THE JUDGE: What is the basis upon which you want it
ply a way of explaining Order 62, Rule 12 with some broad disclosed?
language to set out the point which I have already made,
that there is a range of possibilities that can justify an MR. CAMERON: So that there is informed comment
order for indemnity costs other than the extreme of mis- where informed comment is desired to be made. The
conduct by a party. But, as I say, I do not want to put them judgment is of interest to quite a wide —
forward other than to say that they exist and if your Lord-
ship wishes or my learned friend wants to have a look at THE JUDGE: Why did you refuse the —
them we will be happy to do that. The point has already
been made. There are further authorities. MR. CAMERON: I actually do not know the story at
all.
THE JUDGE: I am grateful. Do you wish me to rule on
the matters so far? THE JUDGE: The other case in which you were in-
volved.
MR. TREASURE: My Lord, I have not addressed you
on the question of publicity. The Defendants happen MR. CAMERON: I am not familiar with the story be-
to know that there is another case which is comparable hind this.
to this one - it is not quite the same, as I understand it - it
is an English national who was injured abroad in some MR. TREASURE: My Lord, if I can assist, I under-
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
stand Mr. Hawkesworth asked Mr. both leading and junior counsel. I permit the judgment
to be made public. There will be a legal aid taxation
Stewart if that case could be relied upon - there was a order and I make an order returning the summons relat-
transcript - and it was refused on the basis that it was a ing to the re-constitution of the first Plaintiff.
chambers decision and not given in open court. I was
informed in very authoritative terms by Mr. Hawkesworth MR. TREASURE: My Lord, there are two further mat-
that it was not an authority which could be referred to. ters arising. One is, what is to happen to this claim pend-
ing the appeal which is 99 per cent certain will take place?
MR. CAMERON: We have another explanation. I do The concern of the Defendants is this. They have not as
not know what the situation was that lay between the yet started to prepare the case in full, far from it. Your
two sides, all I know is that there were different factors Lordship will see from the figures that I have quoted the
in that case and it is something which arose in the con- respective amounts of preparation and what remains for
text of the provision of legal aid in this case and whether the Defendants yet to do by way of preparation. Your
the Legal Aid Board had been informed about the judg- Lordship will appreciate that if the action continues there
ment that we lost. It does not form any part of my un- will have to be a defence filed and that will clearly have
derstanding as to why this should be made public. to be a very substantial defence. There will be undoubt-
edly requests for further and better particulars, certainly
MR. TREASURE: My Lord, the public interest would a request for a statement of claim and no doubt a request
be ultimately satisfied, I suggest, by the knowledge for further and better particulars of the defence. They
that the Defendants’ application for a stay has failed and will be very detailed.
been dismissed. There would be no objection to that.
Again, I do not know what my clients’ instructions will So far as the Defendants are concerned, they will want
be because I have had no notice of this. to know exactly what the Plaintiffs say was wrong with
the process, with the system that was being carried out
THE JUDGE: This is only an interlocutory stage; it is and how this contributed to the poisoning. At the moment
not as if I am trying the action. It is simply a ruling on it is pleaded in extremely general terms. There may or
whether the trial should be held here or in South Africa. may not be a reply. There will have to be discovery.
Discovery is likely to be extremely expensive, in
MR. TREASURE: My Lord, I am not sure if disclosing particular the Plaintiffs will be interested in all the
interim decisions or interim findings is going to be help- documents relating to what went on at Margate and in
ful or not. relation to the documents at the South African plant.
There is likely to be a very large number of documents
MR. CAMERON: My Lord, there is one final point. and the discovery process will be extremely expensive.
We have had a couple of requests There will be, no doubt, interrogatories dealing with
matters by way of requests for further and better
from people to see the judgment, but there are two other particulars, witness statements and expert reports.
points I wish to make that I left out. One, I need to ask
for legal aid taxation and, two, I need to have the order Your Lordship can see in the light of the figures I have
which you granted to amend returned to us. quoted there will be a further £50-100,000 worth of costs
being incurred by the Defendants between now and the
THE JUDGE: You want the order to amend —— hearing of any appeal. I hope I am not being unrealistic.
MR. CAMERON: To join the —— THE JUDGE: Between now and the hearing of the appeal?
THE JUDGE: To reconstitute the Plaintiffs’ action. MR. TREASURE: My Lord, it depends at what pace
the action proceeds and so far the
MR. CAMERON: Exactly, yes.
Plaintiffs have been extremely speedy and chasing the
THE JUDGE: The costs in respect of that? Defendants along, and they will no doubt proceed equally
speedily from here on.
MR. CAMERON: No, simply to have the order. The
summons issued in respect of that needs to be returned THE JUDGE: I suppose you say costs are going to have
to us. to be incurred somewhere in any event, either in South
Africa or here. Why do all these costs have to be in-
RULING ON COSTS curred? How long is the whole thing going to take?
THE JUDGE: I order the Defendants pay the Plaintiffs’ MR. TREASURE: Unfortunately, it is likely to take some
costs on a standard basis. There will be certificates for time.
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ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
THE JUDGE: This is only a first instance decision in THE JUDGE: I have had quite a lot of appeals from the
chambers. The appeal will come on within six months, Master where I have had new affidavits put in. Are the
will it not? But then perhaps the number of transcripts criteria different?
that I have had to sign might indicate that that is not the
case. Will this appeal not come on within six months? MR. TREASURE: The criteria are different, yes. It is
very rare for there to be any
MR. TREASURE: I rather suspect it will not, unless it
is expedited. If it is expedited then, yes, it probably will objection to fresh material when the matter comes be-
come on within six months; if it is not expedited it might fore the judge from the Master. If there is an appeal to
take longer than that. the Court of Appeal in interlocutory cases the guidelines
are a little different. It is not the evidence for the appeal
THE JUDGE: Are there any reasons which you can ad- that is going to be expensive, it is the evidence in the
vance as to why it should be expedited? procedural sense that will be required if the action con-
tinues in the meantime, which will be irrecoverable.
MR. TREASURE: There are reasons that can be ad-
vanced. The Court of Appeal has very strict guidelines THE JUDGE: What might happen is that the Court of
on what can and cannot be expedited because of the con- Appeal might order a stay, then it goes to South Africa
sequences on other cases. Cases such as family cases do and a large measure of the work that has been done, you
receive priority. would say, would be thrown away.
THE JUDGE: The only thing I was thinking of was the MR. TREASURE: Yes. In those circumstances, if it went
second Plaintiff. I am not sure what his state of health is. to South Africa, the likelihood is, the Defendants would
suggest, that they do not sue these corporate Defend-
MR. TREASURE: I do not think he is at risk of death. I ants, they would probably sue Mr. Cowley and the offic-
assume his condition is now stable. ers in South African company. The South African com-
pany, of course, they cannot sue under Section 7, but the
THE JUDGE: I am sorry, I interrupted you. You were officers are third parties and can be sued. So the likeli-
saying that there were going to be a lot of costs between hood is, if the action proceeded in South Africa it would
now and the hearing of the appeal. be on a different basis. It would be comparatively
cheaper. All the evidence about the Margate workers
MR. TREASURE: My Lord, yes. would be dropped. All the pleadings and the interroga-
tories and the further and better particulars in this action
THE JUDGE: This is going to what application, Mr. would be largely wasted. That is assuming that the case
Treasure? was to proceed in South Africa.
MR. TREASURE: My Lord, for a stay of the action THE JUDGE: You say that there is no guarantee that the
pending appeal. The concern on the part of the Defend- Court of Appeal will agree with me. It is one of those
ants is that all these further costs will be incurred and cases which could go either way.
whatever happens on the appeal those costs will be
unrecoverable. My Lord, this is another consequence of MR. TREASURE: Yes. It could go either way and the
the fact that the Plaintiffs are legally aided. prospects of a successful appeal are very far from unre-
alistic. It is a very complicated area and in those circum-
THE JUDGE: What you are saying is this is a discrete stances there is every risk that an awful lot of costs will
issue which I have decided, where the forum should be. be wasted which, in no circumstances, would be recov-
The appeal should be on the basis of the evidence which erable - not the costs of the appeal but the continuing
was available before me. progress of the case.
MR. TREASURE: Yes. THE JUDGE: So you want a stay of these proceedings
pending the appeal.
THE JUDGE: Is the appeal a re-hearing? You are enti-
tled to put in more evidence. MR. TREASURE: My Lord, I say that that is the price
the Plaintiffs pay for having the
MR. TREASURE: My Lord, the power to admit further
evidence is comparatively restricted. In an appeal benefit of legal aid: because they have this immunity
against a final decision it is very restricted: you have to against paying costs, the consequence is if there is an
show that it is credible; you have to show that it is rel- appeal of this sort then it is proper to order that the ac-
evant; you have to show that it would not have been tion be stayed in the meantime.
available at the trial.
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JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
THE JUDGE: What do you say, Mr. Cameron? THE JUDGE: I cannot think of any reason why I should
not give you leave to appeal in the unusual circum-
MR. CAMERON: I am afraid it is all too speculative. stances of this case. I shall give leave to appeal.
We do not know many of these
MR. CAMERON: In any event, there is no justification
things my learned friend wants to put before your Lord- for granting a stay of the action in those circumstances,
ship as a reason for staying the action, but we do know given that for example, in Spiliada it is clearly said that
that we cannot proceed in South Africa in any event. There the judge who hears the hearing on stay has a discretion
is no question of there being a case which would sud- and there will be very few points to aim at for the De-
denly materialize in South Africa. There may be some fendants in this case. Nothing will require further evi-
points in my learned friend’s presentation that point to dence to be gathered. There is plenty of material before
expediting the appeal, but they certainly do not point to this court and therefore the Court of Appeal on which to
staying the action at this stage. There is no defence at the determine these points of law. There cannot be any rea-
moment; there are possibilities that the evidence will go son for postponing the progress of the case simply be-
in some sense stale if we do not press on with the case at cause there might be one or two other points that can be
this stage. If my learned friend is saying that he will presented in evidence before the Court of Appeal.
make an application for leave to appeal that we can agree
that there are grounds for expediting the appeal for these THE JUDGE: Is that not an argument in his favour rather
reasons that he has advanced. But there is no justifica- than yours? You are saying there is nothing of importance
tion for holding up the proper course of the proceedings, which is going to happen between now and the appeal. In
given that the Plaintiffs have won the application. those circumstances, why should I not order a stay?
This is not simply a severable item. Large elements of MR. CAMERON: Because the case has an ordinary pat-
the Plaintiffs’ claim have been reviewed in this case in tern to follow based upon my learned friend’s applica-
order for it to proceed. Indeed that justifies a lot of the tion for leave, but it does not need to stop the flow of the
evidence which was brought forward. It was helpful to case. There are still matters which would help define the
your Lordship to understand that this is a real case. We issues further between the parties not yet served on the
can now proceed and it is up to the Defendants to seek defence and which ought to follow this stage of the pro-
leave to impede that process once more through their ceedings which the Plaintiffs have won. There is no need
appeal and not through any other device. to add another pressure on the case than the one which
already exists because of my friend’s application for leave.
THE JUDGE: Can they apply to the Court of Appeal for It is an application for a stay twice over. The only issue
expedition? is whether or not my learned friend wants to raise mat-
ters in order to justify leave.
MR. CAMERON: Yes. Indeed, it would go together
with the draft order: they can ask for leave to appeal and THE JUDGE: What he has said is that a lot of costs
that it be expedited and then give reasons for so expedit- would be thrown away if the appeal is allowed. Do you
ing can be attached. concede that or not?
THE JUDGE: Rather than my giving an order that the MR. CAMERON: There is no need for me to concede
appeal be expedited, you can go that because we all know that there are going to be is-
sues raised before the Court of Appeal which have al-
before the Court of Appeal and ask them for an order. ready been aired and that the Plaintiffs can expect the
Defendants to produce a defence now, given that their
MR. CAMERON: That is correct, if that is what he case is properly set in motion. There is no reason, if you
wishes to do. like, to apply a double stay to these proceedings. I do
not see that the Defendants are at all prejudiced by hav-
THE JUDGE: So I can give leave for an application. ing to contend with a properly constituted claim against
them. They have had their chance with the stay, they
MR. CAMERON: My learned friend has not decided have lost and off we go.
whether or not he is going to seek
RULING ON LEAVE TO APPEAL
leave. He has to talk to the client. So it does not arise at
this stage. THE JUDGE: I give leave to appeal to the Court of
Appeal and the application for a stay pending the ap-
MR. TREASURE: I will be asking for leave to appeal peal is refused. Are there any other orders?
today.
MR. TREASURE: My Lord, I am just thinking this one
254
ENGELBERT NGCOBO & O THERS V T HOR CHEMICALS H OLDINGS L TD & O THERS
through. It may be that the THE JUDGE: You did not really think I was going to
take much notice of that, did you?
Defendants will wish to make an application for a stay
to the Court of Appeal. I wonder if your Lordship would MR. TREASURE: My Lord, no, and I would not be too
grant a short stay to enable that to be made. worried about it if it was not for what is said at para-
graph 92 about the Defendants’ attitude to the South Af-
THE JUDGE: Yes, I will grant a stay of 28 days for that rican operation. Your Lordship sees there: “I am in-
purpose. formed by a former Margate worker that when discuss-
ing the prospective South African plant, managers of the
MR. TREASURE: I am most grateful. There is one fur- first and second Defendants in England used phrases such
ther matter outstanding, which is the Defendants’ sec- as ‘niggers are expendable’’. ‘It’s great out there. You
ond summons relating to the affidavit of Mr. Meeran. pay them 50p an hour and they’re quite happy with it. If
Your Lordship will remember that Mr. Hawkesworth did anyone kicks up, you just fire them’.” My Lord, in the
ask at the end of his submissions that paragraphs 92 and context of a claim of three original workers, two of whom
93 be deleted. are dead and one seriously injured, that is an extremely
serious allegation to make.
THE JUDGE: Yes, and then what happened was that an
affidavit was put in proving THE JUDGE: And in the context that no claim for ex-
emplary damages is made.
sources, but some still remain which related to a rather
emotive way in which criticisms were levelled at the De- MR. TREASURE: My Lord, yes. If your Lordship then
fendants’ side. Is that the passage? looks at paragraph 94 your Lordship sees: “This point
was regrettably repeated by the Defendants’ counsel, Mr.
MR. TREASURE: My Lord, yes. Treasure, at the last hearing.”
THE JUDGE: Which is the passage? THE JUDGE: I say without reservation that these para-
graphs have been not of the slightest assistance to me.
MR. TREASURE: My Lord, so far as the passages where Any suggestion by the Defendants’ legal team that you
no source of information is given, the sources have now have been in any way involved in a racist attitude is
been given and therefore, subject to the question of costs, wholly ignored for these purposes, but where does it leave
those problems have been dealt with. us on the question of costs?
THE JUDGE: They can be dealt with on the application MR. TREASURE: My Lord, the order that I would seek
for costs before the Taxing Master. is that those paragraphs be struck out on the grounds
that they are vexatious, scandalous and irrelevant.
MR. TREASURE: My Lord, no. That is a matter for
the court to deal with. THE JUDGE: You want the costs of those in any event.
THE JUDGE: What you say is insofar as it became nec- MR. TREASURE: Yes.
essary for you to ask for sources you should be allowed
those costs in any event. THE JUDGE: Let us see what Mr. Cameron says. You
are not attributing to Mr. Treasure expressions like,
MR. TREASURE: Yes. The application falls into two “Niggers are expendable”, are you, Mr. Cameron?
parts. There are those parts in Mr. Meeran’s second af-
fidavit which were, if I can use shorthand, “unsourced” MR. CAMERON: Certainly not, my Lord. As my
and the second part of the application related to those learned counsel said, in some senses some of the ex-
paragraphs in the affidavit which made allegations against changes of affidavits have generated more heat than light
both myself and —— and there is no doubt that at some point differences did
arise and offence was taken. I do not think it goes to the
THE JUDGE: Where are they? heart of the legal case and it does not form part of the
judgment in the case. It has not involved significant ad-
MR. TREASURE: My Lord, they appear at paragraphs ditional costs and I think it would be best if it was just
92 to 93 at page 170 of the bundle. left lying. There are, of course, counter accusations and
the same points are made in a counter affidavit about
THE JUDGE: Is this based upon Mr. Kemp’s opinion? unsourced information coming from the Defendants’ side.
No, Mr. Kemp is the Defendants’ expert. It would be possible to open this up for probably another
half an hour or so while we go through all of that mate-
MR. TREASURE: My Lord, he was, yes. rial.
255
JUDICIAL D ECISIONS IN M ATTERS R ELATED TO E NVIRONMENT/NATIONAL DECISIONS V OLUME I
THE JUDGE: There is a lot of evidence which is pleaded MR. TREASURE: I have to say that I am extremely
on both sides. offended. A great deal of time was wasted in dealing
with it. My Lord, the question was raised in correspond-
MR. CAMERON: Exactly. There were concerns from ence as to who was responsible for those allegations and
each side to get as much before the Court to help the the response came back that they were quire proper and
court decide —— the Defendants’ representatives should have been more
careful, so there has never been any offer to withdraw
THE JUDGE: There is no reason why I cannot delete those allegations or to consent to their being struck out.
these paragraphs without dealing with costs.
THE JUDGE: Are you inviting me to impose a penalty?
MR. TREASURE: My Lord, I invite you to delete these If you are, then I am being asked to make a determina-
paragraphs and then consider the question of costs. tion as to whether they are justified or not. At present I
am quite happy to proceed on the basis that they are
MR. CAMERON: My Lord, I would prefer to let them wholly unjustified and therefore should be deleted. I
lie and move on with the Plaintiffs’ costs awarded as it would prefer in the circumstances not to go any further.
currently stands and to not take individual points and try
and award a notional figure for the inconvenience suf- MR. TREASURE: In those circumstances, I do not pur-
fered by either party. I think there is a balance here which sue my application for costs.
needs to be preserved.
MR. CAMERON: There are counter points of view.
THE JUDGE: I have some sympathy Mr. Treasure and Offence was taken. Those instructing me were offended.
indeed with you. Paragraphs of this type do not greatly That is a fact. I did not wish to open this up.
assist the court when it comes to making a decision and
I direct that the paragraphs be deleted. However, in the THE JUDGE: I make the order which I do in the spirit
overall costs I cannot see that the paragraphs sounding of trying to diffuse the atmosphere. I think it is better
off about attitudes of mind by the Defendants will greatly that those paragraphs no longer remain in the affidavits.
have added to the costs. Is there anything else?
MR. TREASURE: Your Lordship will forgive me. This MR. TREASURE: My Lord, I am most grateful for your
is a matter that affects me personally and I therefore say patience this afternoon.
what I say with considerable diffidence.
THE JUDGE: I am most grateful to everybody for the
THE JUDGE: Yes, I understand. considerable assistance I have been given.
256
Section 4
Public Trust Doctrine
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
258
M.C. MEHTA V UNION OF INDIA
(1997) 1 SUPREME COURT CASES 388
(BEFORE KULDIP SINGH AND S. SAGHIR AHMAD, JJ.)
M.C. MEHTA — PETITIONER
v.
KAMAL NATH AND OTHERS — RESPONDENTS
Writ Petition (C) No.182 of 1996, decided on December 13, 1996
Constitution of India - Arts. 21 and 32 - Ecology - Pub- lands and natural areas to retain their natural character-
lic Trust doctrine - Is part of the Indian law - It extends istic is finding its way into the law of the land. The an-
to natural resources such as rivers, forests, seashores, air cient Roman Empire developed a legal theory known as
etc, for the purpose of protecting the ecosystem - Lease the “Doctrine of the Public Trust”. The Public Trust
granted by State Government of riparian forest land for Doctrine primarily rests on the principle that certain re-
commercial purpose to a private company having a Mo- sources like air, sea, waters and the forests have such a
tel located at the bank of river Beas - Motel management great importance to the people as a whole that it would
interfering with natural flow of river by blocking natural be wholly unjustified to make them a subject of private
relief/pill channel of the river - Held, State Govt. com- ownership. The said resources being a gift of nature,
mitted breach of public trust - Prior approval granted by they should be made freely available to everyone irre-
Govt. of India, Ministry of Environment and Forest and spective of the status in life. The doctrine enjoins upon
lease granted in favour of the Motel quashed - Polluter the Government to protect the resources of the enjoy-
Pays Principle applicable - Accordingly the polluter com- ment of the general public rather than to permit their use
pany liable to compensate by way of cost for restitution for private ownership or commercial purposes. Though
of environment and ecology of the area - Other direc- the public trust doctrine under the English common law
tions issued - Doctrines - Public Trust. extended only to certain traditional uses such as naviga-
tion, commerce and fishing, the American Courts in re-
A news item appeared in Indian Express stating that a pri- cent cases expanded the concept of the public trust doc-
vate company Span Motels Pvt. Ltd., in which the family trine. The observations of the Supreme Court of Cali-
of Kamal Nath (a former Minister for Environment and fornia in Mono Lake case clearly show the judicial con-
Forests) had direct link, had built a club at the bank of cern in protecting all ecologically important lands, for
River Beas by encroaching land including substantial for- example fresh water, wetlands or riparian forests. The
est land which was later regularized and leased out to the observations therein to the effect that the protection of
company when Kamal Nath was the Minister. It was stated ecological values is among the purposes of public trust,
that the Motel used earth-movers and bulldozers to turn may give rise to an argument that the ecology and the
the course of the river. The effort on the part of the Motel environment protection is a relevant factor to determine
was to create a new channel by diverting the river-flow. which lands, waters or airs are protected by the public
According to the news item three private companies were trust doctrine. The Courts in United States are finally
engaged to reclaim huge tracts of land around the Motel. beginning to adopt this reasoning and are expanding the
The main allegation in the news item was that the course public trust to encompass new types of lands and waters.
of the river was being diverted to save the Motel from fu- There is no reason why the public trust doctrine should
ture floods. The Supreme Court took notice of the news not be expanded to include all ecosystems operating in
item because the facts disclosed therein, if true, would be our natural resources. Our legal system - based on Eng-
a serious act of environmental-degradation on the part of lish common law - includes the public trust doctrine as
the Motel. Disposing of the writ petition part of its jurisprudence. The State is the trustee of all
natural resources which are by nature meant for public
Held: use and enjoyment. Public at large is the beneficiary of
the sea-shore, running waters, airs, forests and ecologi-
The notion that the public has a right to expect certain cally fragile lands. The State as a trustee is under a legal
259
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
duty to protect the natural resources. These resources Himachal Pradesh Government committed patent breach
meant for public use cannot be converted into private of public trust by leasing the ecologically fragile land to
ownership. Thus the Public Trust doctrine is a part of the Motel management. The lease transactions are in
the law of the land. (Paras 23 to 25, 33, 34 and 39). patent breach of the trust held by the State Government.
(Paras36 and 22)
“Public Trust Doctrine in Natural Resource Law: Ef-
fective Judicial Intervention”. Further, the admissions by the Motel management in
various letters written to the Government, the counter-
Michigan Law Review, Vol.68, part 1, p.473, related affidavits filed by the various government officers and
on the report placed on record by the Board clearly show
that the Motel management has by their illegal construc-
Illinois Central Railroad Co. v. People of the State of tions and callous interference with the natural flow of
Illinois, 146 US 387: 36 L Ed. 1018 (1892); Could River Beas has degraded the environment. The Motel
v. Greylock Reservation Commission, 350 Mass 410 interfered with the natural flow of the river by trying to
(1966); Sacco v. Development of Public Works, 532 block the natural relief/spill channel of the river. It is
Mass 670, Robbins v. Dept. of Public Works, 244
now settled by the Supreme Court that one who pollutes
NE 2d 577; National Audubon Society v. Superior
Court of Alpine County (Mono Lake case), 33 Cal the environment must pay to reverse the damage caused
3d 419; Philips Petroleum Co. v. Mississippi, 108 by his acts. (Paras 21 and 38)
SCt 791 (1988), relied on
Vellore Citizens’e Forum v. Union of India, (1996) 5
Priewev v. Wisconsin State Land and Improvement SCC 647: IT (1996) 7 SC 375, followed
Co., 93 Wis 534 (1896); Crawford County Lever and
Drainage Distt. No.1, 182 Wis 404; City of Indian Council for Enviro-Legal Action v. Union of
Milwaukee v. State, 193 Wis 423; State v. Public India, (1966) 3 SCC 212: IT (1966) 2 SC 196, cited
Service Commission, 275 Wis 112, referred to
Marks v. Whitney, 6 Cal 3d 251; United Plainsmen Therefore, the Motel shall pay compensation by way of
v. N.D. State Water Cons. Comm’n, 247 NW 2d 457 cost for the restitution of the environment and ecology
(ND 1976), cited of the area. The pollution caused by various construc-
The issues presented in this case illustrate the classic tions made by the Motel in the riverbed and the banks of
struggle between those members of the public who would River Beas has to be removed and reversed. NEERI is
preserve our rivers, forests, parks and open lands in their directed through its Director to inspect the area, if nec-
pristine purity and those charged with administrative re- essary, and give an assessment of the cost which is likely
sponsibilities who, under the pressures of the changing to be incurred for reversing the damage caused by the
needs of an increasingly complex society, find it neces- Motel to the environment and ecology of the area. NEERI
sary to encroach to some extent upon open lands hereto- may take into consideration the report by the Board in
fore considered inviolate to change. The resolution of this respect. The Motel through its management shall
this conflict in any given case is for the legislature and show cause why pollution fine in addition be not im-
not the courts. If there is a law made by Parliament or posed on the Motel. The Motel shall construct a bound-
the State Legislatures the courts can serve as an instru- ary wall at a distance of not more than 4 metres from the
ment of determining legislative intent in the exercise of cluster of rooms (main building of the Motel) towards
its powers of judicial review under the Constitution. But the river basin. The boundary wall shall be on the area
in the absence of any legislation, the executive acting of the Motel which is covered by the lease. The Motel
under the doctrine of public trust cannot abdicate the shall not encroach/cover/utilize any part of the river ba-
natural resources and convert them into private owner- sin. The boundary wall shall separate the Motel build-
ship, or for commercial use. The aesthetic use and the ing from the river basin. The river bank and the river
pristine glory of the natural resources, the environment basin shall be left open for the public use. The Motel
and the ecosystems of our country cannot be permitted shall not discharge untreated effluents into the river. The
to be eroded for private, commercial or any other use Himachal Pradesh Pollution Control Board is directed
unless the courts find it necessary, in good faith, for the to inspect the pollution control devices/treatment plants
public good and in public interest to encroach upon the set up by the Motel. If the effluent/waste discharged by
said resources. (Para 35) the Motel is not conforming to the prescribed standards,
action in accordance with law be taken against the Mo-
In the present case, large area of the bank of River Beas tel. The Himachal Pradesh Pollution Control Board shall
which is part of protected forest has been given on a lease not permit the discharge of untreated effluent into River
purely for commercial purposes to the Motels. The area Beas. The Board shall inspect all the hotels/institutions/
being ecologically fragile and full of scenic beauty should factories in Kullu-Manali area and in case any of them
not have been permitted to be converted into private are discharging untreated effluent/waste into the river,
ownership and for commercial gains. Therefore, the the Board shall take action in accordance with law. The
260
M.C. MEHTA V. KAMAL NATH & OTHERS
Motel shall show cause on 18-12-1996 why pollution KULDIP SINGH, J. - This Court took notice of the
fine and damages be not imposed as directed by us. news item appearing in the Indian Express dated 25-
NEERI shall send its report to the Court by 17-12-1996. 2-1996 under the caption - “Kamal Nath dares the
To be listed on 18-12-1996. (Para 39). mighty Beas to keep his dreams afloat”. The rel-
evant part of the news item is as under:
R-M/17231/C “Kamal Nath’s family has direct links with a private
company, Span Motels Private Limited, which owns
Advocates who appeared in this case:In person, for the a resort - Span Resorts - for tourists in Kullu-Manali
Petitioner: Valley. The problem is with another ambitious ven-
ture floated by the same company - Span Club.
H.N. Salve, Senior Advocate (M.S. Vashisht, Rajiv Dutta, The club represents Kamal Nath’s dream of hav-
Shiv Pujan Singh, J.S. Attri and L.R. Rath, Advocats, ing a house on the bank of the Beas in the shadow of
with him) for the Respondents. the snow-capped Zanskar Range. The club was built
after encroaching upon 27.12 bighas of land, includ-
ing substantial forest land, in 1990. The land was
Chronological list of cases cited
later regularized and leased out to the company on
11.4.1994. The regularization was done when Mr.
1. (1996) 5 SCC 647: JT (1996) 7 SC 375, Vellore Citi- Kamal Nath was Minister of Environment and For-
zens’ Welfare Forum v. Union of India. 413g ests ... The swollen Beas changed its course and en-
gulfed the Span Club and the adjoining lawns, wash-
2. (1996) 3 SSC 212: KT (1996) 2 SC 196, Indian Coun- ing it away.
cil for Enviro-Legal Action v. Union of India414c-d
For almost five months now, the Span Resorts manage-
3. 532 Mass 670, Sacco v. Development of Public Works ment has been moving bulldozers and earth-movers to
409e-f turn the course of the Beas for a second time.
4. 350 Mass 410 (1996), Gould v. Greylock Reserva- The heavy earth-mover has been used to block the flow
tion Commission 408f of the river just 500 metres upstream. The bulldozers
are creating a new channel to divert the river to at least
5. 275 Wis 112, State v. Public Service Commission one kilometre downstream. The tractor-trolleys move
410a earth and boulders to shore up the embankment surround-
ing Span Resorts for laying a lawn. According to the
6. 247 NW 2d 457 (ND 1976) United Plainsmen v. N.D. Span Resorts management, the entire reclaiming opera-
State Water Cons. Comm’n 412c-d tion should be over by March 31 and is likely to cost
over a crore of rupees.
7. 244 NE 2d 577, Robbins v. Deptt. of Public Works
409g Three private companies - one each from Chandigarh,
Mandi and Kullu - have moved in one heavy earth-mover
8. 146 US 387: 36L Ed 1018 (1892), Illinois Central (hired at the rate of Rs 2000 per hour), four earth-mov-
Railroad Co. v. People of the State of Illinois 408b, ers and four bulldozers (rates varying from Rs 650 to Rs
408d-e 850 each per hour) and 35 tractor trolleys. A security
ring has been thrown all around. ... Another worrying
9. 193 Wis 423, City of Milwaukee v. State 410a thought is that of the river eating into the mountains,
leading to landslides which are an occasional occurrence
10.182 Wis 404, Crawford County Lever and Drainage in this area. Last September, these caused floods in the
Distt. No.1 410a Beas and property estimated to be worth Rs 105 crores
was destroyed. ... Once they succeed in diverting the river,
11.108 SCt 791 (1988), Philips Petroleum Co. V Mis- the Span management plans to go in for landscaping the
sissippi 412g, 412g-h reclaimed land. But as of today, they are not so sure.
Even they confess the river may just return.
12.93 Wis 534 (1896), Priewev v. Wisconsin State Land
and Improvement Co. 410a ‘Mr. Kamal Nath was here for a short while two-three
months ago. He came, saw what was going on and left. I
13.33 Cal 3d 419, National Audubon Society v. Supe- suppose he know what he is doing’, says another executive.
rior Court of Alpine County 410d-e, 412e-f, 412f
The District Administration pleads helplessness. Rivers
14.6 Cal 3d 251, Marks v. Whitney 411b-c, 411g and forest land, officials point out, are not under their
jurisdiction. Only the Kullu Conservator of Forests or
The Judgement of the Court was delivered by the District Forest Officer can intervene in this case.
261
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
But who is going to bell the country’s former Environ- Share holding No. of Shares % held
ment and Forests Minister? Mrs. Leela Nath 32,560 42
EMC Projects Pvt. Ltd. 14,700 19
Interestingly, a query faxed to Kamal Nath for his views SHAKA Properties Pvt. Ltd 15,000 19
on these developments fetched a reply from Mr. S. SHAKA Estate & Finance Pvt. Ltd 15,000 19
Mukerji, President of the Span Motels Private Limited. Capt. Alok Chandola 250 01
77,510 100
Admitting that the Nath family had ‘business interests’
in the company since 1981, he said, ‘the company is 4. It was not disputed before us by Mr. Harish Salve,
managed by a team of professional managers and Mr. learned counsel appearing for Mr. Kamal Nath, that al-
Kamal Nath is not involved in the management activity most all the shares in the Motel are owned by the family
of the company’ of Mr. Kamal Nath. We do not wish to comment on the
averment made on oath by Mr. Kamal Nath that he has
‘The Board comprises professionals, some of whom are “no right, title or interest in the property known as Span
friends and relatives of the Nath family’, Mr. Mukerji Resorts owned by Span Motels Private Limited@.
said. He expressed surprise that a reference had been
made to Rangri and Chakki villagers ‘since these villag- 5. Mr. B.L. Mathur filed an additional counter-affidavit
ers are at least 2/3 kilometres away and not even on the dated 30-7-1996 on behalf of the Motel. The counter-
river side’. affidavit mentioned above states that government land
measuring 40 bighas 3 biswas situated alongside Killu-
He said the Span Club was ‘not for the exclusive use of Manali Road on the bank of River Beas was granted on
any one individual’. We would like to emphasize that lease to the Motel for a period of 99 years with effect
we are only “restoring the rive” to its original and natu- from 1-10-1972 to 1-10-2071. The lessee was granted
ral course and are restoring our land and of those of neigh- permission to enter and occupy the said area for the pur-
bouring villagers similarly affected by the flood.’ pose of putting up a Motel and for installing ancillaries
in due course as may be subsequently approved by the
He maintained that ‘Mr. Kamal Nath has definitely not lessor. We may refer to paras 6 and 7 of the lease deed
been to Span Resorts in the last two months and in fact, dated 29-9-1972 which are as under:
to the best of my knowledge, has not travelled to Kullu
Valley for quite some time now. In any case, we had 5. Mr. B.L. Mathur filed an additional counter-affidavit
never ‘blocked’ any channel in the vicinity of Span.’” dated 30-7-1996 on behalf of the Motel. The counter-
affidavit mentioned above states that government land
2. Mr. Kamal Nath filed one-page counter-affidavit dated measuring 40 bighas 3 biswas situated alongside Kullu-
8-6-1996. Paras 1 and 3 of the counter are under: Manali Road on the bank of River Beas was granted on
lease to the Motel for a period of 99 years with effect
“I say that I have been wrongly arrayed as a respond- from 1-10-1972 to 1-10-2071. The lessee was granted
ent in the above petition inasmuch as I have no right, permission to enter and occupy the said area for the pur-
title or interest in the property known as ‘Span Re- pose of putting a Motel and for installing ancillaries in
sorts’ owned by ‘Span Motels Private Limited’. due course as may be subsequently approved by the les-
I further say that the allegations made in the press re- sor. We may refer to paras 6 and 7 of the lease deed
ports based on which this Honourable Court was pleased dated 29-9-1972 which are as under:
to issue notice are highly exaggerated, erroneous, mala
fide, mischievous and have been published only to harm “The lessee shall not dig deep pits of trenches in the
and malign the reputation of this respondent.” said land, which may lead to the danger of erosion
and shall make good the lessor defects caused by their
3. On behalf of Span Motels Private Limited (the Motel), acts of defaults within one month of notice by the
lessor.
Mr. Banwari Lal Mathur, its Executive Director, filed coun-
ter-affidavit. Paras 2 and 3 of the counter are as under: In the event of said land being required by lesser for
any other purpose, whatsoever the lessor will be en-
“I say that Mr. Kamal Nath who has been arrayed as titled to terminate this lease at any time by giving six
Respondent 1 in the above writ petition has no right, months’ notice in writing to the lessee and the lessee
title or interest in the property known as SPAN RE- shall not be entitled to any compensation whatsoever
SORTS owned by Span Motels Pvt. Ltd. or in the on account of such termination.”
lands leased out to the said company by the State of
6. The current management (Shri Kamal Nath’s family)
Himachal Pradesh.
took over the Motel in the year 1981. Fresh lease was
I say that the shareholding of SPAN MOTELS PVT. LTD. signed on 29-11-1981. The new lease was for the same
is as under: period from 1972 to 2071. Paras 4 and 5 of the addi-
tional affidavit are as under:
262
M.C. MEHTA V. KAMAL NATH & OTHERS
“I say that the Motel commenced operations in 1975. MAIHACH, (Burua), MANALI, in exchange for the
There are over 800 trees in this area of 40 bighas. above-mentioned 22.2 bighas of Class III banjar for-
The Motel has two clusters with 8 dwelling units of est land adjoining our land in Village Baragran Bihal,
3 rooms each. The rooms are nowhere near the river which we request for transfer to our company in lieu
- the distance between the cluster of rooms and the of the land we are willing to surrender. The specific
beginning of the river basin is about 10 metres - ac- revenue maps and records concerning this area of land
tually the river is another 30 metres therefrom. Thus, at Village Majhach, are also enclosed herewith for
the effective distance between the edge of the river your kind perusal.”
and the cluster of rooms is 40 metres.
It is obvious from the contents of the letter quoted above
I say that in the peak of the flood, the river did not that the Motel had encroached upon an additional area
come closer than 10 metres to the rooms and did not, of 22.2 bighas adjoining to the leasehold area. Apart
therefore, pose any danger to the rooms, particularly from that the Motel had built extensive stone, cemented
there are no problems qua rooms as the rooms are on and wire-mesh-crated embankments all along the river
a higher level - at least 5-7 metres at their closest
banks. The Motel was keen to have the encroached land
point.”
by way of exchange/lease. A request to that effect was
Along with the additional affidavit the correspondence repeated in the letter dated 12-9-1989 addressed to the
between the Motel and the Government has been an- Divisional Forest Officer, Kullu. The Motel again re-
nexed. In a letter dated 19-10-1988 addressed to the Chief peated its request for lease of the additional land by the
Minister, Himachal Pradesh, the Motel gave details of letter dated 9-7-1991. The said letter further stated as
the flood-damage during the year 1988 and finally re- under:
quested the Government for the following steps:
“We would also like to mention that the banjar land
“Further it is imperative that the Government take adjoining our hotel, referred to in para 1 above, lies
immediate steps to stop erosion of the land under lease along the bank of River Beas which erodes to every
to us. It would appear that strong concrete black- year. About ten years ago almost 4 bighas of this
ened retaining walls will be necessary to be placed at land were washed away and the on flowing water has
appropriate points to protect the landmass around us.” posed a serious threat to our hotel buildings and ad-
joining area. To protect our property we were com-
7. The Motel addressed letter dated 30-8-1989 to the pelled to erect deep protection embankments along
Divisional Forest Officer, Kullu. The relevant part of the banjar land in question at huge cost the details of
the letter is as under: which will be sent to you shortly. If our proposal is
accepted for the exchange of land it will become pos-
“When we acquired our land on lease, there were no sible for us to take further steps to protect this land.”
clear demarcations of the surrounding areas and
boundaries. There has existed a stretch of waste and 8. The Divisional Forest Officer, Kullu sent reply dated
‘banjar’ (Class III) forest land in a longitudinal strip 12-1-1993 which stated as under:
along the river bank admeasuring about 22.2 bighas,
contiguous and adjacent to our leased land. Over the
“In this connection it is intimated that at present we
years, and especially after the severe floor erosion
are not having funds to put crates and spurs along the
last year, we have built extensive stone, cemented and
river side near your hotel to check the soil erosion,
wire-mesh-crated embankments all along the river
as indicated in your letter referred to above. In order
banks at considerable expense and cost. We have
to protect your property from the damage, you can
also gradually and painstakingly developed this en-
carry out such works at your level, subject to the con-
tire waste and ‘banjar’ area, beautified and landscaped
dition that the ownership of the land would vest with
it, planted ornamental, fruiting and varied forest trees
Forest Department and the Department would not be
extensively such that it blends with our estate and
liable to pay any amount incurred for the purpose by
with the surrounding flora and environment in a har-
you at a later stage and you would not claim any right
monious manner. A revenue map along with all Rev-
on government property.”
enue Department records covering this entire area, is
forwarded enclosed herewith for your reference and
perusal. The above-quoted letter can be of no consequence be-
cause much before the said letter the Motel had built
We are aware that in accordance with the Forest Con- extensive stone, cemented and wire-mesh-crated embank-
servation Act of 1980, the use of forest land by pri- ments all along the river bank. This is obvious from the
vate agency even for natural development and affor- contents of the letter dated 30-8-1989 (quoted above).
estation scheme, requires alternative matching com-
pensatory afforestation land areas to be surrendered
9. The Motel addressed a letter dated 21-6-1993 to the
by the concerned party, after due approval of the Gov-
ernment. In view of this statutory precondition, we Chief Secretary, Himachal Pradesh wherein it is clearly
wish to submit that we can immediately surrender to stated that the adjoining land measuring 22 bighas and 3
the Government nearly 28 bighas and 13 biswas of biswas had been reclaimed by the Motel. The relevant
private agricultural cultivated land located at Village part of the letter is as under:
263
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
“Adjoining our Resort and contiguous to our leased be done by a supplementary lease as it is imperative
land is a stretch of Class III - banjar forest land in a to save the land under the original lease.
longitudinal strip along the river bank admeasuring
22 bighas and 3 biswas. This was a stony piece of All we have done is to reclaim and protect the land
land ———————— washed away and reduced from erosion by constructing crates, retaining walls
in size by river erosion year by year. This land was and embankments along River Beas by investing huge
reclaimed by us and protected by an embankment and amounts which unfortunately have all been washed
filling from the river side.” away due to floods and now requires reconstruction
to save the forest land and our adjoining property from
The said letter further states as under: total destruction.”
“Similarly on the river side part of our leased land 11. The Government of India, Ministry of Environment
there used to be floods and erosion every year. If we and Forests by the letter dated 24-11-1993 addressed to
would have let this continue, the leased land would the Secretary, Forest, Government of Humachal Pradesh,
have also got reduced every year. In order to protect Shimla conveyed its prior approval in terms of Section 2
our leased land and to save damage to our hotel prop-
of the Forest (Conservation) Act, 1980 for leasing to the
erty, we at our own considerable expense and cost
built stone and wire-mesh-crated embankment all Motel 27 bighas and 12 biswas of forest land adjoining
along the river bank. This not only protected our to the land already on lease with the Motel. A lease deed
hotel land but also the forest land ..... dated 11-4-1994 regarding the said land was executed
between the Himachal Government and the Motel. The
In 1988 there were severe floods when every portion additional affidavit filed by the Motel refers to the prior
of leased land got washed away. It became impera- approval granted by the Government of India as under:
tive for us at considerable expense to build an em-
bankment on the river front along the leased prop- “In the Ministry of Environment and Forests, the pro-
erty. In order to build an embankment on the river posal was cleared by the Secretary and forwarded to
front along the leased property the washed away area the Forest Advisory Committee bypassing the Min-
and part of the river bank had to be filled at huge ister concerned. The Forest Advisory Committee
cost. Once the river bed and the washed away area cleared the proposal subject to severe restrictions -
was filled, the choice before us was either to put soil and also certain restrictions which are not normally
on it and grow grass and trees to secure it or let it imposed in such cases. The proposal was then cleared
remain unsecured and aesthetically displeasing. We at the level of the Prime Minister and by a letter of
chose the former. As a result of land-filling and em- 24-11-1993, approval was communicated to the State
bankment our leased area when measured will obvi- Government and SMPL.”
ously show an increase. This increase is not an en-
croachment but reclamation with the objective of pro-
12. It may be mentioned that Mr. Kamal Nath was the
tecting the leased property.”
Minister-in-charge, Department f Environment and For-
10. In the letter dated 7-8-1993 addressed to the Divi- ests at the relevant time. What is sought to be conveyed
sional Forest Officer, the Motel again asked for lease of by the above-quoted paragraph is that Mr. Kamal Nath
adjoining area. The relevant part of the letter is as un- did not deal with the file. The correspondence between
der: the Motel and the Humachal Government referred to and
quoted by us shows that from 1988 the Motel had been
“We had explained in our previous letters dated 21- writing to the Government for the exchange/lease of the
6-1993 and 23-7-1993 (copies of which have been additional forest land. It is only in November 1993 when
sent to you with our letter dated 5-8-1993) the cir- Mr. Kamal Nath was the Minister, in charge of the De-
cumstances under which we had to spend enormous partment that the clearance was given by the Govern-
sum of money in protecting and reclaiming the for-
ment of India and the lease was granted. Surely it can-
est land adjoining our Resort. It had become neces-
sary for us to undertake this reclamation and protec- not be a coincidence.
tion work by filling the land from the river bed, con-
structing embankments, retaining walls and crating 13. This Court took notice of the news item - quoted
etc. in order to protect the land leased by the Gov- above - because the facts disclosed therein, if true, would
ernment to our Span Resort and property thereon but be a serious act of environmental-degradation on the part
we were unable to complete the entire work as we of the Motel. It is not disputed that in September 1995
were restrained from carrying on with the work un- the swollen Beas engulfed some part of the land in pos-
der undue allegations of encroachment on the forest session of the Motel. The news item stated that the Mo-
land ...
tel used earth-movers and bulldozers to turn the course
In order to expedite the process of commencing pro- of the river. The effort on the part of the Motel was to
tection work on an urgent basis on the forest land, create a new channel by diverting the river-flow. Ac-
we propose that the forest land be given to us on long cording to the news item three private companies were
lease coterminous with the lease of the land granted engaged to reclaim huge tracts of land around the Motel.
by the Government for our Span Resorts. This could
The main allegation in the news item was that the course
264
M.C. MEHTA V. KAMAL NATH & OTHERS
of the river was being diverted to save the Motel from Naggar nowhere does it take into account the very
future floods. In the counter-affidavit filed by the Mo- real problems of villagers of Baragran Bihal which
tel, the allegations in the news item have been dealt with is located immediately on the right bank near the
in the following manner: SPAN Resort who were seriously affected by the
floods. Chakki, Rangri and Naggar villages have
“(l) If the works were not conducted by the Company, it not at all been affected by the floods and there is no
would in future eventually cause damage to both remove possibility of these villages being affected
banks of the river, under natural flow conditions. due to the flood-protection works conducted by the
Company.”
(m) By dredging the river, depth has been provided to
the river channel thus enhancing its capacity to cope In the additional affidavit filed by the Motel the facts
with large volume of water.(n) The wire crates have pleaded are as under:
been put on both banks of the river. This has been
done to strengthen and protect the banks from ero- (ii) it had become necessary for them to undertake this
sion and NOT as any form of river diversion. It is reclamation and protection work by filling the land
not necessary to divert the river because simply from river bed, constructing embankments, retain-
providing greater depth and removing debris depos- ing walls and crates, etc. in order to protect
its enhances the capacity of the river to accommo- the land leased by the Government to the Resort
date greater water flow. and the property thereon.
(o) I further state that the nearly 200 metres of wire (vii) The forest land which is susceptible to heavy river
crates which have been put on the left bank of the erosion by floods involves high cost for its protec-
river (the river bank on the opposite side of SPAN) tion from getting washed away every year and would
is in the interest of the community and nearby resi- be protected by construction of embankments and
dents/villages. This left bank crating protects the filling from the river side by the Company ... local
hillside where RANGRI, CHAKKI and NAGGAR community of Kullu and Manali and surrounding
are located. villages will benefit.”
(s) After the floods, it was observed, that the boulders 14. Mr. G.D. Check, Under Secretary (Revenue), Gov-
and rubble deposits were obstructing and hindering ernment of Himachal Pradesh in the counter-affidavit
the flow of the river and thus, it was the common filed in this Court stated as under:
concern of the Company as well as of the Panchayat
of Village BARAGRAN BIHAL to carry out dredg- “(iii) That subsequently, a piece of land measuring 21-
ing measures to provide free flow of the river wa- 09 bighas was encroached by M/s Span Motels. On
ter. coming to the notice of the Government of such en-
croachment, the Government of Himachal Pradesh
(t) Accordingly alleviation measures conducted by the in Revenue Department took action and reportedly
Company and the villagers of BARAGRAN BIHAL got the encroached land vacated, and the posses-
were as under: sion of which has been taken over by the Forest De-
partment.
(i) Dredging of debris deposit: Debris deposits in river
basis which had collected due to the floods were That on 21-22 July, 1992, the then Chief Secretary to the
removed by dredging. This deepens the channel Government of Himachal Pradesh visited the site who
and thus allows larger flow of water. drew the inference that M/s Span Motels Ltd. were still
using the encroached land. The copy of note on inspec-
(ii) Strengthening of both banks with wire crates: Wire tion of the then Chief Secretary is annexed as R-1.
crates are the common method of protection of bank
erosion. Accordingly wire crates were put along That immediately on receipt of the recommendations of
the opposite side (left bank) to protect the landslide the then Chief Secretary (Annexure R-1), the Depart-
of the hillside wire on which Village RANGRI is ment of Forest started working at the site but in the mean-
perched, Wire crating was also put on the Resort time, it was decided to lease out a piece of land measur-
side of the river (right bank) to strengthen and pro- ing 27-12 bighas which includes the said encroached land
tect the bank against erosion. All the wire crating measuring 21-09 bighas. The lease granted by the Gov-
runs along the river flow and not as an obstruction ernment of Himachal Pradesh in Revenue Department
or for any diversion. vide letter No. Rev. D(G)6-53/93, dated 5-4-1994 is an-
nexed as Annexure R-11 after obtaining the approval of
(w) It is further submitted that whereas the report mis- Government of India, Minister of Environment and For-
chievously refers to villagers of Rangri, Chakki and est, New Delhi vide letter No.9-116/93-ROC, dated 24-
265
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
11-1993 (copy annexed as Annexure R-III) for the pur- 17. Pursuant to this Court’s order dated 6-5-1996 the
pose of protecting earlier leased land. Board filed its report along with the affidavit of Dr. S.P.
Chakrabarti, Member Secretary of the Board. It is stated
That the developmental activities which was being un- in the affidavit that a team comprising Dr. Bharat Singh,
dertaken by M/s Span Motels Ltd. came to the knowl- Former Vice-Chancellor and Professor Emeritus, Uni-
edge of the Government from the news item which ap- versity of Roorkee, Dr. S.K. Ghosh, Senior Scientist and
peared in the Press and field officers of all the depart- former Head, Division of Plant Pathology (NF), Kerala
ments concerned took an exercise to carry out the in- Forest Research Institute, Preechi, Trichur and Dr. S.P.
spection and reported the matter to the Government.” Chakrabarti, Member Secretary, Board was constituted.
The team inspected the area and prepared the report. Para
15. C.P. Sujaya, Financial Commissioner-cum-Secre- 4.2 of the report gives details of the construction done
tary (Irrigation and Public Health), Government of by the Motel prior to 1995 floods. The relevant part of
Himachal Pradesh in her counter-affidavit filed in this the paragraph is as under:
Court, inter alia, stated as under:
“To protect the newly-acquired land, SMPL took a
“Admitted to the extent that the Span Resorts number of measures which include construction of
managment had deployed heavy earth-moving ma- the following as shown in F.2:
chinery to reclaim their land and to divert/channelize (a) 8 nos. studs of concrete blocks 8 m long and 20 m
the course of river to its course which it was follow- apart on the eastern face of the club island on the
ing prior to 1995 floods by dredging and raising of
upstream side,
earthen and wire-crated embankments.
The flow of river has been changed/diverted by dredg- (b) 150 m long stepped wall also on the eastern face of
ing/raising of wire-crated embankments and creat- club island on the downstream side,
ing channel from a point u/s of Span Resorts. The
approximate length of channel is about 1000 metres. (c) A 2 m high bar of concrete blocks at the entry at the
Admitted to the extent that Villages Rangri and spill channel, and
Chakki are located on left bank of River Beas. How-
ever, channelization of river has been done slightly (d) Additional 8 nos. studs also 8 m long and 20 m apart
away from the toe of foothills except for the last about on the right bank of River Beas in front of the res-
500 metres where it is running along the foothills.
taurant of the SMPL.
The hill on which Villages Rangri and Chakki are
situated consists of small boulders embedded in sandy While (a) & (b) were aimed at protecting the club island
strata and is quite fragile/unstable in nature. There- from the main current, (c) was to discourage larger in-
fore, this reach of river is prone to landslides in the flow into the spill channel. Item (d) was meant to pro-
normal course also. However, it is feared that flow
tect the main resort land of SMPL if heavy flow comes
of river along the foothills may hasten/aggravate the
process of landslides. The Span Management has into the spill channel.
provided wire-crated embankment in a reach of about
90 metres on left bank and about 270 metres on right The works executed in 1993 were bank protection works,
bank to channelize the flow and also to reclaim part and were not of a nature so as to change the regime or
of land on right bank of River Beas. the course of river. A medium flood again occurred in
1994. Partly due to the protection works, no appreciable
Admitted to the extent that the diversion/ damage occurred during this flood. The main current
channelization of river has been done to restore it to still continues on the left bank.”
its course of pre-1995 floods and in doing so, by rais-
ing the earthen and wire-crated embankments, some 18. The happening of events in the vicinity of the Motel
land of villagers situated on right bank of River Beas
during the 1995 flood and the steps taken by the Motel
has also been reclaimed along with land of Span Re-
sort.” have been stated in the report as under:
16. This Court by the order dated 6-5-1996 directed the “A big slip occurred on the hillside on the left bank,
Central Pollution Control Board (the Board) through its at a distance about 200 m upstream from the point
Member Secretary to inspect the environments around where division into main and spill channels was oc-
the area in possession of the Motel and file a report. This curring, on the afternoon of September 4, 1995. This
partially blocked the main left side channel which
Court further ordered as under:
was relatively narrow at this location. This presum-
ably triggered the major change of course in the river,
“Meanwhile we direct that no construction of any type diverting the major portion of the flow into spill chan-
or no interference in any manner with the flow of the nel towards the right and almost over the entire land
river or with the embankment of the river shall be area of the club island. The entire club building and
made by the Span Management.” the plantation as well as the protection works built in
266
M.C. MEHTA V. KAMAL NATH & OTHERS
1993 were washed away. Heavy debris was depos- river by blasting the big boulders and removing the
ited on this land. Damage occurred on the right bank debris. The flood-control measures, taken by them
also but the buildings of the main SMPL resort re- on the right bank of the main channel and at the mount
mained more or less unaffected. A large hotel and of relief channel after the 1993 flood, were also
many buildings on the right bank, almost adjacent to washed off. There is no sign of any boundary of the
SMPL in the downstream were also washed away. premises of the newly-acquired land.
The bar of blocks at the upstream end of the spill
channel as well as most of the studs on this channel 6.5 The mouth of the natural relief/spill channel has
were also washed away. Some remnants of five down- been blocked by construction of wire crate and dump-
stream studs could be seen at the time of the visit. ing of boulders (A & B). The area has almost been
After the passage of 1995 flood, SMPL have taken levelled. Although a little discharge was observed
further steps to protect their property as shown in Fig. due to seepage through boulders and flowing through
3. These are as follows: the remnants of the relief channel to the downstream,
the channel is blocked by a stonewall across the chan-
1. The left side channel (the main channel), which nel (F) at the downstream of M/s SMPL by a private
had become less active, has been dredged to increase property owner who has even constructed two wells
its capacity. Wire crate revetments (A, B & C) on (E) on the bed of the channel. This indicates the in-
both banks of this channel have been made to direct tention of the occupiers of the right bank properties
the flow through this channel. These revetments and in the concerned stretch in favour of filing up of the
earth restoration work done would curtail the entry natural spill/relief channel.
of water into the right side relief/spill channel which
had developed into the main channel during the flood. 6.6 M/s Span Motels has not consulted any Flood
A relatively small channel (the relief/spill channel) Control Expert as it appeared from the way of con-
still exists and carries very little flow. Bulk of the struction of the wire crate. No proper revetment was
flow is now going into the left bank channel. done which crating. As such, these cratings may not
last long.
On the left bank, there are steep unstable slopes at 6.7 In the process of channelizing the main course,
higher elevations left after the slides during the flood. the main stream has been divided into two, one of
These are likely to slip in any case, and if so hap- which goes very near to the left bank (G) because of
pens,, may block the left channel again. This land which fresh land slip in future is not ruled out.
belongs to some villagers from Rangri. The left bank
6.8 The relief channel is supposed to be the govern-
channel is again sub-dividing into two streams (D)
ment land. Construction of any sort to block the natu-
and the small stream is flowing close to the toe of the
ral flow of water is illegal and no permission has been
hills for a distance of about 500 to 600 m before it
taken from the department concerned.
turns towards midstream. Some of the dredged ma-
terial is piled on the right bank and some on the di- 6.9 The lease agreement of 1994 had the clause for
vide between the main channel and the subsidiary protection of the land but it should have been done
channel on the left. Slips can be seen in this reach of not by blocking the flood spill/relief channel.
500-600 m even now, and erosion at toe may aggra- 6.10 Relief channel is the shortest path between the
vate sliding tendency. SMPL has also put 190 m wire two bends. Any future slip on left bank due to train-
crates (C) as protection against erosion of this bank, ing of discharge at its foot may cause flood on the
which may be helpful up to moderate flood condi- right bank where the leasehold land (1994) exists.
tions.
6.11 No new construction should be allowed in this
The dredging and channelization of the left bank flood-prone area except flood-protection measures.
channel, though aimed at protecting SMPL land, No economic activity should be undertaken in the
should normally keep high intensity of flow away aforementioned stretch.
from both banks in moderate floods. This should 6.12 Since newly-acquired land of M/s SMPL is lo-
thus not be a cause of concern. In high floods, the cated on the flood plain sandwiched between the main
water would spill or spread beyond this channel. Due channel and the relief/spill channel, the land may be
to restriction of entry in the right relief/spill channel, de-leased and the Forest Department take care of plan-
though the works may not withstand a high flood, tation in the area after adequate flood-control meas-
there may be a tendency for more flow towards the ures are taken by the Irrigation Department. This is
left bank. However, the river is presently in a highly necessitated in view of the fact that the left bank op-
unstable regime after the 1995 extraordinary floods, posite SMPL is very steep (almost vertical) and is
and it is difficult to predict its behaviour if another subjected to potential threat of land slip to block the
high flood occurs in the near future.” channel and cause change of course of the river flow
The conclusion given by the inspecting team in the re- again.
port are as under:
6.13 Even if land slips occur, the impact will be lo-
“6.4 M/s Span Motels Private Limited had taken some cal, limited only to the stretch of beas River near
flood-control measures at the immediate upstream by SMPL.
construction of wire crates (Fig. 3) on both sides (A, 6.14 The river is presently in a highly unstable re-
B and C) and also dredged the main channel of the gime after 1995 extraordinary floods, and it is diffi-
267
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
cult to predict its behaviour if another high flood oc- 10. The construction work was not done under expert
curs in the near future. A long-term planning for flood advice.
control in Kullu Valley needs to be taken up immedi-
ately with the advice of an organization having ex- 11. The construction work undertaken by the Motel for
pertise in the field, and permanent measures shall be
channelizing the main course has divided the main stream
taken to protect the area so that recurrence of such a
heavy flood is mitigated permanently.” into two, one of which goes very near to the left bank
because of which, according to the report, fresh land slip
19. On a careful examination of the counter-affidavits in future cannot be ruled out.
filed by the parties, the report placed on record by the
Board and other material placed on record, the follow- 20. The report further indicates that the relief channel
ing facts are established: being part of the natural flow of the river no construc-
tion of any sort could be made to block the said flow.
1. The leasehold area in possession of the Motel is a According to the report no permission whatsoever was
part of the protected forest land owned by the State Gov- sought for the construction done by the Mote. The Board
ernment. in its report has further opined that the clause in the lease
agreement for protection of land did not permit the Mo-
2. The forest land measuring 27 bighas and 12 biswas tel to block the flood spill/relief channel of the river. The
leased to the Motel by the lease deed dated 11-4-1994 is report categorically states that no new construction should
situated on the right bank of the river and is separated be allowed in this flood-prone area and no economic
from the Motel by a natural relief/spill channel of the activities should be permitted in the said stretch. It has
river. been finally recommended by the inspection team that
the land acquired by the Motel under the 1994 lease deed
3. A wooden bridge on the spill channel connects the is located on the flood plain, sandwiched between the
main Motel land and the land acquired under the 1994 main channel and the relief/spill channel and as such it
lease deed. should be de-leased so that the Forest Department may
take care of the plantation in the area and also preserve
4. 22.2 bighas out of the land leased to the Motel in the ecologically fragile area of River Beas.
1994 was encroached upon by the Motel in the years
1988/89. 21. Mr. Harish Salve vehemently contended that what-
ever construction activity was done by the Motel on the
5. Prior to the 1995 floods the Motel constructed 8 studs land under its possession and on the area around, if any,
of concrete, blocks 8 m long and 20 m apart on the up- was done with a view to protect the leasehold land from
stream bank of the river, 150 m long stepped wall on the floods. According to him the Divisional Forest Officer
downstream side of the river and 2 m high bar of con- by the letter dated 12-1-1993 - quoted above - permitted
crete blocks at the entry of the spill channel and addi- the Motel to carry out the necessary works subject to the
tions 8 studs 8 m long and 20 m apart on the right bank conditions that the department would not be liable to pay
of River Beas in front of the restaurant of the Motel. any amount incurred for the said purpose by the Motel.
We do not agree. It is obvious from the correspondence
6. After the 1995 floods the Motel has dredged the left between the Motel and the Government, referred to by
side channel (the main channel) of the river to increase us, that much before the letter of the Divisional Forest
its capacity. Wire crate revetments on both banks of the Officer dated 12-1-1993, the Motel had made various
main channel of river have been made to direct the flow constructions on the surrounding area and on the banks
through the said channel. This has been done with a of the river. In the letter dated 30-8-1989 addressed to
view to curtail the entry of water into the right side re- the Divisional Forest Officer, Kullu - quoted above - the
lief/spill channel. Motel management admitted that “over the years, and
especially after the severe flood erosion last year, we have
7. The Motel has constructed 190 m wire crates on the built extensive stone, cemented and wire-mesh-crated
bank of the river (upstream). The dredged material is embankments all along the river banks at considerable
piled up on the banks of the river. The dredging and and cost. We have also gradually and painstakingly de-
channelizing of the left bank has been done on a large veloped this entire waste and banjar area”. The “Banjar
scale with a view to keep high intensity of flow away area” referred to in the letter was the adjoining area
from the Motel. admeasuring 22.2 bighas which was not on lease with
the Motel at that time. The admissions by the Motel
8. The dredging of the main channel of river was done management in various letters written to the Government,
by blasting the gib boulders and removing the debris. the counter-affidavits filed by the various government
officers and the report placed on record by the Board
9. The mouth of the natural relief/spill channel has been clearly show that the motel management has by their il-
blocked by wire crates and dumping of boulders. legal constructions and callous interference with the natu-
268
M.C. MEHTA V. KAMAL NATH & OTHERS
ral flow of River Beas has degraded the environment. evitable.’
We have no hesitation in holding that the Motel inter-
fered with the natural flow of the river by trying to block Professor Barbara Ward has written of this ecological
the natural relief/spill channel of the river. imperative in particularly vivid language:
22. The forest lands which have been given on lease to ‘We can forget moral imperatives. But today the
the Motel by the State Government are situated at the morals of respect and care and modesty come to us
bank of River Beas. Beas is a young and dynamic river. in a form we cannot evade. We cannot cheat on DNA.
It runs through Kullu Valley between the mountain ranges We cannot get round photosynthesis. We cannot say
I am not going to give a damn about phytoplankton.
of the Dhauladhar in the right bank and the Chandrakheni
All these tiny mechanisms provide the preconditions
in the left. The river is fast-flowing, carrying large boul- of our planetary life. To say we do not care is to say
ders, at the times of flood. When water velocity is not in the most literal sense that “we choose death”.’
sufficient to carry the boulders, those are deposited in
the channel often blocking the flow of water. Under such There is a commonly-recognized link between laws and
circumstances the river stream changes its course, re- social values, but to ecologists a balance between laws
maining within the valley but swinging from one bank and values is not alone sufficient to ensure a stable rela-
to the other. The right bank of River Beas where the tionship between humans and their environment. Laws
Motel is located mostly comes under forest, the left bank and values must also contend with the constraints im-
consists of plateaus, having steep bank facing the river, posed by the outside environment. Unfortunately, cur-
where fruit orchards and cereal cultivation are predomi- rent legal doctrine rarely accounts for such constraints,
nant. The area being ecologically fragile and full of sce- and thus environmental stability is threatened.
nic beauty should not have been permitted to be con-
verted into private ownership and for commercial gains. Historically, we have changed the environment to fit our
conceptions of property. We have fenced, plowed and
23. The notion that the public has a right to expect cer- paved. The environment has proven malleable and to a
tain lands and natural areas to retain their natural char- large extent still is. But there is a limit to this malleabil-
acteristic is finding its way into the law of the land. The ity, and certain types of ecologically important resources
need to protect the environment and ecology has been - for example, wetlands and riparian forests - can no
summed up by David B. Hunter (University of Michi- longer be destroyed without enormous long-term effects
gan) in an article titled An ecological perspective on prop- on environmental and therefore social stability. To ecolo-
erty: A call for judicial protection of the public’s inter- gists, the need for preserving sensitive resources does
est in environmentally critical resources published in not reflect value choices but rather is the necessary re-
Harvard Environmental Law Review, Vol.12 1988, p.311 sult of objective observations of the laws of nature.
is in the following words:
In sum, ecologists view the environmental sciences as
“Another major ecological tenet is that the world is providing us with certain laws of nature. These laws,
finite. The earth can support only so many people just like our own laws, restrict our freedom of conduct
and only so much human activity before limits are and choice. Unlike our laws, the laws of nature cannot
reached. This lesson was driven home by the oil cri- be changed by legislative fiat; they are imposed on us
sis of the 1970s as well as by the pesticide scare of
by the natural world. An understanding of the laws of
the 1960s. The current deterioration of the ozone
layer is another vivid example of the complex, un- nature must therefore inform all of our social institutions.”
predictable and potentially catastrophic effects posed
by our disregard of the environmental limits to eco- 24. The ancient Roman Empire developed a legal theory
nomic growth. The absolute finiteness of the envi- known as the “Doctrine of the Public Trust” It was
ronment, when coupled with human dependency on founded on the ideas that certain common properties such
the environment, leads to the unquestionable result as rivers, seashore, forests and the air were held by Gov-
that human activities will at some point be con- ernment in trusteeship for the free and unimpeded use of
strained. the general public. Our contemporary concern about “the
‘[H]uman activity finds in the natural world its ex- environment” bear a very close conceptual relationship
ternal limits. In Short, the environment imposes con- to this legal doctrine. Under the Roman law these re-
straints on our freedom; these constraints are not the sources were either owned by no one (res nullious) or by
product of value choices but of the scientific impera- every one in common (res communious). Under the
tive of the environment’s limitations. Reliance on
English common law, however, the Sovereign could own
improving technology can delay temporarily, but not
forever, the inevitable constraints. There is a limit to these resources but the ownership was limited in nature,
the capacity of the environment to service ... growth, the Crown could not grant these properties to private own-
both in providing raw materials and in assimilating ers if the effect was to interfere with the public interests
by-product wastes due to consumption. The largesse in navigation or fishing. Resources that were suitable
of technology can only postpone or disguise the in- for these uses were deemed to be held in trust by the
269
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Crown for the benefit of the public. Joseph L. Sax, Pro- while accepting the stand of the State of Illinois held
fessor of Law, University of Michigan - proponent of that the title of the State in the land in dispute was a title
the Modern Public Trust Doctrine - in an erudite article different in character from that which the State held in
“Public Trust Doctrine in Natural Resource Law: Effec- lands intended for sale. It was different from the title
tive Judicial Intervention”, Michigan Law Review, which the United States held in public lands which were
Vol.68, Part I p.473, has given the historical background open to pre-emption and sale. It was a title held in trust
of the Public Trust Doctrine as under: - for the people of the State that they may enjoy the navi-
gation of the water, carry on commerce over them and
“The source of modern public trust law is found in a have liberty of fishing therein free from obstruction or
concept that received much attention in Roman and interference of private parties. The abdication of the
English law - the nature of property rights in rivers, general control of the State over lands in dispute was not
the sea, and the seashore. That history has been given consistent with the exercise of the trust which required
considerable attention in the legal literature, need not
the Government of the State to preserve such waters for
be repeated in detail here. But two points should be
emphasized. First, certain interests, such as naviga- the use of the public. According to Professor Sax the
tion and fishing, were sought to be preserved for the Court in Illinois Central “articulated a principle that has
benefit of the public: accordingly, property used for become the central substantive thought in public trust
those purposes was distinguished from general pub- litigation. When a State holds a resource which is avail-
lic property which the sovereign could routinely grant able for the free use of the general public, a court will
to private owners. Second, while it was understood look with considerable skepticism upon any governmen-
that in certain common properties - such as the sea- tal conduct which is calculated either to relocate that re-
shore, highways, and running water - ‘perpetual use source to more restricted uses or to subject public uses
was dedicated to the public’, it has never been clear
to the self-interest of private parties”.
whether the public had an enforceable right to pre-
vent infringement of those interests. Although the
State apparently did protect public uses, no evidence 27. In Gould v. Greylock Reservation Commission2 the
is available that public rights could be legally asserted Supreme Judicial Court of Massachusetts took the first
against a recalcitrant government.” major step in developing the doctrine applicable to
changes in the use of land dedicated to the public inter-
25. The Public Trust Doctrine primarily rests on the prin- est. In 1886 a group of citizens interested in preserving
ciple that certain resources like air, sea, waters and the Mount Greylock as an unspoiled natural forest, promoted
forests have such a great importance to the people as a the creation of an association for the purpose of laying
whole that it would be wholly unjustified to make them out a public park on it. The State ultimately acquired
a subject of private ownership. The said resources being about 9000 acres, and the legislature enacted a statute
a gift of nature, they should be made freely available to creating the Greylock Reservation Commission. In the
everyone irrespective of the status in life. The doctrine year 1953, the legislature enacted a statute creating an
enjoins upon the Government to protect the resources Authority to construct and operate on Mount Greylock
for the enjoyment of the general public rather than to an Aerial Tramway and certain other facilities and it au-
permit their use for private ownership or commercial thorized the Commission to lease to the Authority any
purposes. According to Professor Sax the Public Trust portion of the Mount Greylock Reservation. Before the
Doctrin imposes the following restrictions on govern- project commenced, five citizens brought an action
mental authority: against both the Greylock Reservation Commission and
the Tramway Authority. The plaintiffs brought the suit
“Three types of restrictions on governmental author- as beneficiaries of the public trust. The Court held both
ity are often thought to be imposed by the public trust: the lease and the management agreement invalid on the
first, the property subject to the trust must not only ground that they were in excess of the statutory grant of
be used for a public purpose, but it must be held avail- the authority. The crucial passage in the judgement of
able for use by the general public; second, the prop-
the Court is as under:
erty may not be sold, even for a fair cash equivalent;
and third the property must be maintained for par-
ticular types of uses.” “The profit-sharing feature and some aspects of the
project itself strongly suggest a commercial enter-
26. The American law on the subject is primarily based prise. In addition to the absence of any clear or ex-
on the decision of the United States Supreme Court in press statutory authorization of as broad a delegation
of responsibility by the Authority as is given by the
Illinois Central Railroad Co. v. People of the State of
management agreement, we find no express grant to
Illinois 1. In the year 1869 the Illinois Legislature made the Authority or power to permit use of public lands
a substantial grant of submerged lands - a mile strip along and of the Authority’s borrowed funds for what seems,
the shores of Lake Michigan extending one mile out from in part at least, a commercial venture for private
the shoreline - to the Illinois Central Railroad. In 1873, profit.”
the Legislature changed its mind and repeated the 1869
grant. The State of Illinois sued to quit title. The Court Professor Sax’s comments on the above-quoted para-
270
M.C. MEHTA V. KAMAL NATH & OTHERS
graph from Gould decision are as under: which diffused public interests need protection
against tightly organized groups with clear and im-
“It hardly seems surprising, then, that the court ques- mediate goals. Thus, it seems that the delicate mix-
tioned why a State should subordinate a public park, ture of procedural and substantive protections which
serving a useful purpose as relatively undeveloped the courts have applied in conventional public trust
land, to the demands of private investors for building cases would be equally applicable and equally ap-
such a commercial facility. The court, faced with propriate in controversies involving air pollution, the
such a situation, could hardly have been expected to dissemination of pesticides, the location of rights of
have treated the case as if it involved nothing but for- way for utilities, and strip mining of wetland filing
mal legal issues concerning the State’s authority to on private lands in a State where governmental per-
change the use of a certain tract of land ... Gould, mits are required.”
like Illinois Centra, was concerned with the most overt
sort of imposition on the public interest: commer- 32. We may at this stage refer to the judgement of the
cial interests had obtained advantages which infringed Supreme Court of California in National Audubon Soci-
directly on public uses and promoted private profits. ety v. Superior Court of Alpine County 9. The case is
But the Massachusetts court has also confronted a popularly known as “the Mono Lake case”. Mono Lake
more pervasive, if more subtle, problem - that con-
is the second largest lake in California. The lake is sa-
cerning projects which clearly have some public jus-
tification. Such cases arise when, for example a high- line. It contains no fish but supports a large population
way department seeks to take a piece of parkland or of brine shrimp which feed vast numbers of nesting and
to fill a wetland.” migrating birds. Islands in the lake protect a large breed-
ing colony of California gulls, and the lake itself serves
28. In Sacco v. Development of Public Works3, the Mas- as a haven on the migration route for thousands of birds.
sachusetts Court restrained the Department of Public Towers and spires of tura (sic) on the north and south
Works from filling a great pond as part of its plan to shores are matters of geological interest and a tourist at-
relocate part of State Highway. The Department pur- traction. In 1940, the Division of Water Resources
ported to act under the legislative authority. The court granted the Department of Water and Power of the City
found the statutory power inadequate and held as under: of Los Angeles a permit to appropriate virtually the en-
tire flow of 4 of the 5 streams flowing into the lake. As
“the improvement of public lands contemplated by a result of these diversions, the level of the lake dropped,
this section does not include the widening of a State the surface area diminished, the gulls were abandoning
highway. It seems rather that the improvement of the lake and the scenic beauty and the ecological values
public lands which the legislature provided for ... is of Mono Lake were imperilled. The plaintiffs environ-
to preserve such lands so that they may be enjoyed
mentalist - using the public trust doctrine - filed a law
by the people for recreational purposes.”
suit against Los Angeles Water Diversions. The case
29. In Robbins v. Deptt. of Public Works4, the Supreme eventually came to the California Supreme Court, on a
Judicial Court of Massachusetts restrained the Public Federal Trial Judge’s request for clarification of the
Works Department from acquiring Fowl Meadows, State’s public trust doctrine. The Court explained the
“wetlands of considerable natural beauty ... often used concept of public trust doctrine in the following words:
for nature study and recreation” for highway use.
“‘By the law of nature these things are common to
30. Professor Sax in the article (Michigan Law Review) mankind - the air, running water, the sea and conse-
refers to Priewev v. Wisconsin State Land and Improve- quently the shores of the sea.’ (Institutes of Justinian
ment Co. 5, Craford County Lever and Drainage Distt. 2.1.1) From this origin in Roman law, the English
common law evolved the concept of the public trust,
No. 16, City of Milwaukee v. State7, State v. Public Serv-
under which the sovereign owns ‘all of its navigable
ice Commission8 and opines that “the Supreme Court of waterways and the lands lying beneath them as trus-
Wisconsin has probably made a more conscientious ef- tee of a public trust for the benefit of the people.’”
fort to rise above rhetoric and to work out a reasonable
meaning for the public trust doctrine than have the courts The Court explained the purpose of the public trust as
of any other State”. under:
31. Professor Sax stated the scope of the public trust “The objective of the public trust has evolved in tan-
doctrine in the following words: dem with the changing public perception of the val-
ues and uses of waterways. As we observed in Marks
“If any of the analysis in this Article makes sense, it v. Whitney10, ‘[p]ublic trust easements (were) tradi-
is clear that the judicial techniques developed in pub- tionally defined in terms of navigation, commerce
lic trust cases need not be limited either to these few and fisheries. They have been held to include the
conventional interests or to questions of disposition right to fish, hunt, bathe, swim, to use for boating
of public properties. Public trust problems are found and general recreation purposes the navigable wa-
whenever governmental regulation comes into ques- ters of the State, and to use the bottom of the naviga-
tion, and they occur in a wide range of situations in ble waters for anchoring, standing, or other purposes.
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
We went on, however, to hold that the traditional triad men v. N.D. State Water Cons. Common12 at pp. 462-
of uses - navigation, commerce and fishing - did not 463, and to preserve, so far as consistent with the
limit the public interest in the trust res. In language public interest, the uses protected by the trust.”
of special importance to the present setting, we stated The Court finally came to the conclusion that the plain-
that ‘[t]he public uses to which tidelands are subject
tiffs could rely on the public trust doctrine in seeking
are sufficiently flexible to encompass caging public
needs. In administering the trust the State is not bur- reconsideration of the allocation of the waters of the
dened with an outmoded classification favouring one Mono basin.
mode of utilization over another. There is a growing
public recognition that one of the important public 33. It is no doubt correct that the public trust doctrine
uses of the tidelands - a use encompassed within the under the English common law extended only to certain
tidelands trust - is the preservation of those lands in traditional uses such as navigation, commerce and fish-
their natural state, so that they may serve as ecologi- ing. But the American Courts in recent cases have ex-
cal units for scientific study, as open space, and as panded the concept of the public trust doctrine. The ob-
environments which provide food and habitat for
servations of the Supreme Court of California in Mono
birds and marine life, and which favourably affect
the scenery and climate of the area.’ Lake case clearly show the judicial concern in protect-
ing all ecologically important lands, for example fresh
Mono Lake is a navigable waterway. It supports a water, wetlands or riparian forests. The observations of
small local industry which harvests brine shrimp for the Court in Mono Lake case to the effect that the pro-
sale as fish food, which endeavour probably quali- tection of ecological values is among the purposes of
fies the lake as a ‘fishery’ under the traditional pub- public trust, may give rise to an argument that the ecol-
lic trust cases. The principal values plaintiffs seek to
ogy and the environment protection is a relevant factor
protect, however, are recreational and ecological - the
scenic views of the lake and its shore, the purity of to determine which lands, waters or airs are protected by
the air, and the use of the lake for nesting and feed- the public trust doctrine. The Courts in United States
ing by birds. Under Marks v. Whitney 11, it is clear are finally beginning to adopt this reasoning and are ex-
that protection of these values is among the purposes panding the public trust to encompass new types of lands
of the public trust.” and waters. In Phillips Petroleum Co. v. Mississippi13
the United States Supreme Court upheld Mississippi’s
The Court summed up the powers of the State as trustee extension of public trust doctrine to lands underlying non-
in the following words: navigable tidal areas. The majority judgement adopted
ecological concepts to determine which lands can be
“Thus, the public trust is more than an affirmation of considered tide lands. Phillips Petroleum case assumes
State power to use public property for public pur- importance because the Supreme Court expanded the
poses. It is an affirmation of the duty of the State to public trust doctrine to identify the tide lands not on com-
protect the people’s common heritage of streams, mercial considerations but on ecological concepts. We
lakes, marshlands and tidelands, surrendering that
see no reason why the public trust doctrine should not
right of protection only in rare cases when the aban-
donment of that right is consistent with the purposes be expanded to include all ecosystems operating in our
of the trust ...” natural resources.
The Supreme Court of California, inter alia, reached the 34. Our legal system - based on English common law -
following conclusion: includes the public trust doctrine as part of its jurispru-
dence. The State is the trustee of all natural resources
“The State has an affirmative duty to take the public which are by nature meant for public use and enjoyment.
trust into account in the planning and allocation of Public at large is the beneficiary of the sea-shore, run-
water resources, and to protect public trust uses when- ning waters, airs, forests and ecologically fragile lands.
ever feasible. Just as the history of this State shows The State as a trustee is under a legal duty to protect the
that appropriation may be necessary for efficient use
natural resources. These resources meant for public use
of water despite unavoidable harm to public trust
values, it demonstrates that an appropriative water cannot be converted into private ownership.
rights system administered without consideration of
the public trust may cause unnecessary and unjusti- 35. We are fully aware that the issues presented in this
fied harm to trust interests. (See Johnson, 14 U.C. case illustrate the classic struggle between those mem-
Davis L. Rev. 233, 256-571; Robie, Some Reflec- bers of the public who would preserve our rivers, for-
tions on Environmental Considerations in Water ests, parks and open lands in their pristine purity and
Rights Administration, 2 Ecology L.Q. 695, 710-711 those charged with administrative responsibilities who,
(1972); Comment, 33 Hastings L.J. 653, 654.) As a under the pressures of the changing needs of an increas-
matter of practical necessity the State may have to
ingly complex society, find it necessary to encroach to
approve appropriations despite foreseeable harm to
public trust uses. In so doing, however, the State must some extent upon open lands heretofore considered in-
bear in mind its duty as trustee to consider the effect violate to change. The resolution of this conflict in any
of the taking on the public trust (see United Plains- given case is for the legislature and not the courts. If
272
M.C. MEHTA V. KAMAL NATH & OTHERS
there is a law made by Parliament or the State Legisla- gal Action v. Union of India15. The Court observed: (SCC
tures the courts can serve as an instrument of determin- p.246, para 65)‘... we are of the opinion that any princi-
ing legislative intent in the exercise of its powers of judi- ple evolved in this behalf should be simple, practical and
cial review under the constitution. But in the absence of suited to the conditions obtaining in this country’.
any legislation, the executive acting under the doctrine
of public trust cannot abdicate the natural resources and The Court ruled that: (SCC p.246, para 65)
convert them into private ownership, or for commercial
use. The aesthetic use and the pristine glory of the natu- ‘... Once the activity carried on is hazardous or in-
ral resources,the environment and the ecosystems of our herently dangerous, the person carrying on such ac-
country cannot be permitted to be eroded for private, tivity is liable to make good the loss caused to any
commercial or any other use unless the courts find it other person by his activity irrespective of the fact
whether he took reasonable care while carrying on
necessary, in good faith, for the public good and in pub-
his activity. The rule is premised upon the very na-
lic interest to encroach upon the said resources.36. Com- ture of the activity carried on’.
ing to the facts of the present case, large area of the bank
of River Beas which is part of protected forest has been Consequently the polluting industries are ‘absolutely li-
given on a lease purely for commercial purposes to the able to compensate for the harm caused by them to vil-
Motels. We have no hesitation in holding that the lagers in the affected area, to the soil and to the under-
Himachal Pradesh Government committed patent breach ground water and hence, they are bound to take all nec-
of public trust by leasing the ecologically fragile land to essary measures to remove sludge and other pollutants
the Motel management. Both the lease transactions are lying in the affected areas’. The ‘Polluter Pays Princi-
patent breach of the trust held by the State Government. ple’ as interpreted by this Court means that the absolute
The second lease granted in the year 1994 was virtually liability for harm to the environment extends not only to
of the land which is a part of the riverbed. Even the compensate the victims of pollution but also the cost of
Board in its report has recommended de-leasing of the restoring the environmental degradation. Remediation
said area. of the damaged environment is part of the process of
‘Sustainable Development’ and as such polluter is liable
37. This Court in Vellore Citizens’ Welfare Forum v. to pay the cost to the individual sufferers as well as the
Union of India14 explained the “Precautionary Principle” cost of reversing the damaged ecology.
and “Polluters Pays Principle” as under: (SCC pp.658-
59, paras 11-13). The Precautionary Principle and the Polluter Pays Prin-
ciple have been accepted as part of the law of the land.”
“Some of the salient principles of ‘Sustainable De-
velopment’, as culled out from Brundtland Report 38. It is thus settled by this Court that one who pollutes
and other international documents, are Inter- the environment must pay to reverse the damage caused
Generational Equity, Use and Conservation of Natu- by his acts.
ral Resources, Environmental Protection, the Precau-
tionary Principle, Obligation to Assist and Cooper-
ate, Eradication of Poverty and Financial Assistance 39. We, therefore, order and direct as under:
to the developing countries. We are, however, of the
view that ‘the Precautionary Principle’ and ‘the Pol- 1. The public trust doctrine, as discussed by us in this
luter Pays Principle’ are essential features of ‘Sus- judgement is a part of the law of the land.
tainable Development’. The ‘Precautionary Princi-
ple’ - in the context of the municipal law - means: 2. The prior approval granted by the Government of In-
(i) Environmental measures - by the State Government dia, Ministry of Environment and Forest by the letter
and the statutory authorities - must anticipate, pre- dated 24-11-1993 and the lease deed dated 11-4-1994 in
vent and attack the causes of environmental degra- favour of the Motel are quashed. The lease granted to
dation. the Motel by the said lease deed in respect of 27 bighas
and 12 biswas of area, is cancelled and set aside. The
(ii) Where there are threats of serious and irreversible Himachal Pradesh Government shall take over the area
damage, lack of scientific certainty should not be and restore it to its original-natural conditions.
used as a reason for postponing measures to pre-
vent environmental degradation. 3. The Motel shall pay compensation by way of cost for
the restitution of the environment and ecology of the area.
(iii) The ‘onus of proof’ is on the actor or the developer/ The pollution caused by various constructions made by
industrialist to show that his action is environmen- the Motel in the riverbed and the banks of River Beas
tally benign. has to be removed and reversed. We direct NEERI
through its Director to inspect the area, if necessary, and
‘The Polluter Pays Principle’ has been held to be a sound give an assessment of the cost which is likely to be in-
principle by this Court in Indian Council for Enviro-Le- curred for reversing the damage caused by the Motel to
273
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
the environment and ecology of the area. NEERI may Control Board to inspect the pollution control devices/
take into consideration the report by the Board in this treatment plants set up by the Motel. If the effluent/
respect. waste discharged by the Motel is not conforming to the
prescribed standards, action in accordance with law be
4. The Motel through its management shall show cause taken against the Motel.
why pollution fine in addition be not imposed on the
Motel. 7. The Himachal Pradesh Pollution Control Board shall
not permit the discharge of untreated effluent into River
5. The Motel shall construct a boundary wall at a dis- Beas. The Board shall inspect all the hotels/institutions/
tance of not more than 4 metres from the cluster of rooms factories in Kullu-Manali area and in case any of them
(main building of the Motel) towards the river basin. The are discharging untreated effluent/waste into the river,
boundary wall shall be on the area of the Motel which is the Board shall take action in accordance with law.
covered by the lease dated 29-9-1981. The Motel shall
not encroach/cover/utilize any part of the river basin. The 8. The Motel shall show cause on 18-12-1996 why pol-
boundary wall shall separate the Motel building from lution fine and damages be not imposed as directed by
the river basin. The river bank and the river basin shall us. NEERI shall send its report by 17-12-1996. To be
be left open for the public use. listed on 18-12-1996.
6. The Motel shall not discharge untreated effluents into 40. The writ petition is disposed of except for limited
the river. We direct the Himachal Pradesh Pollution purpose indicated above.
274
RURAL L ITIGATION AND ENTITLEMENT KENDRA DEHRADUN AND OTHERS V. STATE OF U.P. AND OTHERS
AIR 1985 SUPREME COURT 652
P.N. BHAGWATI, AMERENDRA NATH SEN
AND RANGANATH MISRA JJ
Writ Petns. Nos. 8209 and 8821 of 1983 D. 12-3-1985
RURAL LITIGATION AND ENTITLEMENT KENDRA DEHRADUN
AND OTHERS, PETITIONS
v.
STATE OF U.P. AND OTHERS, RESPONDENTS
And(A) Constitution of India, Art. 32 - Writ petition - regard to the voluminous material placed before us and
Imbalance to ecology and hazard to healthy environment the momentous issues raised for decision, it is not pos-
due to working on lime-stone quarries - Supreme Court sible for us to prepare a full and detailed judgement
ordered their closure (Ecological balance - Preservation immediately and at the same time, on account of in-
(Public health - Hazard to) (Minor minerals - Close down terim order made by us, mining operations carried out
of mining operations on count of public health) through blasting have been stopped and the ends of jus-
tice require that the lessees of lime-stone quarries should
(Paras 7, 10, 12) know, without any unnecessary delay, as to where they
stand in regard to their lime-stone quarries, we propose
(B) Constitution of India, Art. 32 - Writ petition - Advo- to pass our order on the writ petitions. The reasons for
cates fee - Advocate of a party rendering valuable assist- the order will be set out in the judgement to follow later.
ance to court in hearing petition - Supreme Court di-
rected the Union Government and State Government, 2. We had by an Order dated 11th August 1983 ap-
respondents to petition, to pay him 5,000 each as addi- pointed a Committee consisting of Sh. D.N. Bhargav,
tional remuneration and not in lieu of costs. (i) Supreme Controller General, Indian Bureau of Mines, Nagpur
Court Rules (1966) Sch. 2 - (ii) Advocates Act (1961) Shri M.S. Kahlon, Director General of Mines Safety
Ss.29, 30. Advocate - Remuneration for rendering valu- and Col. P. Mishra, Head of the Indian Photo Interpre-
able assistance to court). (Para 15) tation Institute (National Remote Sensing Agency for
the purpose of inspecting the lime-stone quarries men-
ORDER:- This case has been argued at great length be- tioned in the writ petition as also in the list submitted
fore us not only because a large number of lessees of by the Government of Utta Pradesh. This Committee
lime-stone quarries are involved and each of them has which we shall hereinafter for the sake of convenience
painstakingly and exhaustively canvassed his factual as refer to as to Bhargav Committee, submitted three re-
well as legal points of view but also because this is the ports after inspecting most of the lime-stone quarries
first case of its kind in the country involving issues relat- and divided the lime-stone quarries into three groups.
ing to environment and ecological balance and the ques- The lime-stone quarries comprised in category A were
tions arising for consideration are of grave moment and those where in the opinion of the Bhargav Committee
significance not only to the people residing in the the adverse impact of the mining operations was rela-
Mussoorie Hill range forming part of the Himalayas but tively less pronounced: category B comprised those
also in their implications to the welfare of the generality lime-stone quarries where in the opinion of the Bhargav
of people living in the country. It brings into sharp fo- Committee the adverse impact of mining operations was
cus the conflict between development and conservation relatively more pronounced and category C covered
and serves to emphasize the need for reconciling the two those lime-stone quarries which had been directed to
in the larger interest of the country. But since having be closed down by the Bhargav Committee under the
275
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
orders made by us on account of de——— regarding fied by the Order dated 25th October 1983. This Com-
safety and hazards of more serious nature. mittee consisted of Prof. K.S. Valdia Shri Hukum Singh
and Shri D.N. Kaul and it was appointed to enquire and
3. It seems that the Government of India also appointed investigate into the question of disturbance of ecology
a Working Group on Mining of Lime-stone Quarries in and pollution and affectation of air, water and environ-
Dehradun area some time in 1983. The Working Group ment by reason of quarrying operations or stone crush-
was also headed by the same Sh. D.N. Bhargav who was ers or lime-stone kilns. Shri D.N. Kaul and Shri Hukum
a member of the Bhargav Committee appointed by us. Singh submitted a joint report in regard to the various
There were five other members of the Working Group aspects while Prof. K.S. Valdia submitted a separate re-
along with Shri D.N. Bhargav and one of them was Dr. port. Prof. K.S. Valdia’s Report was confined largely to
S. Mudgal who was at the relevant time Director in the the geological aspect and in the report he placed consid-
Department of Environment, Government of India and erable reliance on the Main Boundary Thrust (hereinaf-
who placed the report of the Working Group before the ter shortly referred to as M.B.T.) and he took the view
Court along with his affidavit. The Working Group in that the lime-stone quarries which were dangerously close
its report submitted in September 1983 made a review to the M.B.T. should be closed down, because they were
of lime-stone quarry leases for continuance or discon- in this sensitive and vulnerable belt. We shall examine
tinuance of mining operations and after a detailed con- this Report in detail when we give our reasons but we
sideration of various aspects recommended that the lime- may straightway point out that we do not think it safe to
stone quarries should be divided into two categories, direct continuance or discontinuance of mining opera-
namely category 1 and category 2: category 1 compris- tions in lime-stone quarries on the basis of the M.B..T.
ing lime-stone quarries considered suitable for continu- We are therefore not basing our conclusions on the Re-
ance of mining operations and category 2 comprising port of Prof. K.S. Valdia but while doing so we may add
lime-stone quarries which were considered unsuitable that we do not for a moment wish to express any doubt
for further mining. on the correctness of his Report.
4. It is interesting to note that the lime-stone quarries 6. We shall also examine in detail the question as to
comprised in category A of the Bhargav Committee Re- whether lime stone deposits act as aquiferous or not. But
port were the same lime-stone quarries which were clas- there can be no gainsaying that lime-stone quarrying and
sified in category 1 by the Working Group and the lime- excavation of the lime-stone deposits do seem to affect
stone quarries in categories B and C of the Bhargav Com- the perennial water springs. The environmental distur-
mittee Report were classified in category 2 of the Report bance has however to be weighed in the balance against
of the Working Group. It will thus be seen that both the the need of lime-stone quarrying for industrial purposes
Bhargav Committee and the Working Group were unani- in the country and we have taken this aspect into ac-
mous in their view that the lime-stone quarries classi- count while making this order.
fied in category A by the Bhargav Committee Report
and category 1 by the Working Group were suitable for 7. We are clearly of the view that so far as the lime-
continuance of mining operations. So far as the lime- stone quarries classified in category C in the Bhargav
stone quarries in category C of the Bhargav Committee Committee Report are concerned which have already
Report are concerned, they were regarded by both the been closed down under the directions of the Bhargav
Bhargav Committee and the Working Group as unsuit- Committee should not be allowed to be operated. If the
able for continuance of mining operations and both were leases of these lime-stone quarries have obtained any stay
of the view that they should be closed down. The only order from any court permitting them to continue the
difference between the Bhargav Committee and the mining operations, such stay order will stand dissolved
Working Group was in regard to limestone quarries clas- and if there are any subsisting leases in respect of any of
sified in category B. The Bhargav Committee Report these lime-stone quarries they shall stand terminated
took the view that these lime-stone quarries need not be without any liability against the State of Uttar Pradesh.
closed down, but it did observe that the adverse impact If there are any suits or writ petitions for continuance of
of mining operations in these lime-stone quarries was expired or unexpired leases in respect of any of these
more pronounced while the Working Group definitely lime-stone quarries pending, they will stand dismissed.
took the view that these lime-stone quarries were not
suitable for further mining. 8. We would also give the same directive in regard to the
lime-stone quarries in the Sahasradhara Block even
5. While making this Order we are not going into the though they are placed in category B by the Phargav
various ramifications of the arguments advanced before Committee. So far as these stone quarries in
us but we may observe straightway that we do not pro- Sahasradhara Block are concerned, we agree with the
pose to rely on the Report of Prof. K.S. Valdia, who was Report made by the Working Group and we direct that
one of the members of the Expert Committee appointed these lime-stone quarries should not be allowed to be
by us by our Order dated 2nd September 1983, as modi- operated and should be closed down forthwith. We would
276
RURAL L ITIGATION AND ENTITLEMENT KENDRA DEHRADUN AND OTHERS V. STATE OF U.P. AND OTHERS
also direct, agreeing with the Report made by the Work- Nagpur and two experts to be nominated by the Depart-
ing Group that the lime-stone quarries placed in category ment of Environment, Government of India within four
2 by the Working Group other than those which are placed weeks from the date of this Order. The lessees of the
in categories B and C by the Bhargav Committee should lime-stone quarries classified as category A in Bhargav
also not be allowed to be operated and should be closed Committee Report and/or category 1 and the Working
down save and except for the lime-stone quarries cov- Group Report and falling within the city limits of
ered by mining leases No.s 31, 36 and 37 for which we Mussoorie as also the lessees of the lime-stone quarries
would give the same direction as we are giving in the classified as category B in the Bhargav Committee Re-
succeeding paragraphs in regard to the lime-stone quar- port will be at liberty to submit a full and detailed scheme
ries classified as category B in the Bhargav Committee for mining their lime-stone quarries to this Committee
Report. If there are any subsisting leases in respect of thereinafter called the Bandypathyay Committee and if
any of these limestone quarries they will forthwith come any such scheme or schemes are submitted the
to an end and if any suits or writ petitions for continu- Bandyopathyay Committee will proceed to examine the
ance of expired or unexpired leases in respect of any of same without any unnecessary delay and submit a report
these lime-stone quarries are pending, they too will stand to this Court whether in its opinion the particular lime-
dismissed. stone quarry can be allowed to be operated in accord-
ance with the scheme and if so, subject to what condi-
9. So far as the lime-stone quarries classified as cat- tions and it cannot be allowed to be operated, the rea-
egory A in the Bhargav Committee Report and of cat- sons for taking that view. The Bandyopadhyay Com-
egory A in the Working Group Report are concerned, we mittee in making its report will take into account the vari-
would divide them into two classes, one class consisting ous aspects which we had directed the Bhargav Com-
of these lime-stone quarries which are within the city mittee and the Kaul Committee to consider while mak-
limits of Mussoorie and the other consisting of those ing their respective reports including the circumstances
which are outside the city limits. We take the view that that the particular lime-stone quarry may or may not be
the lime-stone quarries falling within category A of the within the limits of Mussoorie and also give an opportu-
Bhargav Committee Report and for category A of the nity to the concerned lessee to be heard, even though it
Working Group Report and falling outside the city lim- be briefly. The Bandyopadhyay Committee will also
its of Mussoorie, should be allowed to be operated sub- consider while making its report whether any violations
ject of course to the observance of the requirements of of the provisions of the Mines Act 1952, the Metallifer-
the Mines Act 1952, the Metalliferous Mines Regula- ous Mines Regulations, 1961 and other relevant statutes,
tions, 1961 and other relevant statutes, rules and regula- rules and regulations were committed by the lessee sub-
tions. Of course when we say this, we must make it mitted the scheme or schemes and if so, what were the
clear that we are not holding that if the leases in respect nature, extent and frequency of such violations and their
of these lime-stone quarries have expired and suits or possible hazards. The Bandyopadhyay Committee will
writ petitions for renewal of the leases are pending in also insist on a broad plan of exploitation coupled with
the courts, such leases should be automatically renewed. detailed mining management plans to be submitted along
It will be for the appropriate courts to decide whether with the scheme or schemes and take care to ensure that
such leases should be renewed or not having regard to the lime-stone deposits are exploited in a scientific and
the law and facts of each case. So far as the lime-stone systematic manner and if necessary, even by law or more
quarries classified in category A in the Bhargav Com- leases coming together and combining the areas of the
mittee Report and/or category 1 in the Working Group lime-stone quarries to be exploited by them. It should
Report and falling within the city limits of Mussorie are also be the concern of the Bandyopadhyay Committee
concerned, we would give the same direction which we while considering the scheme or schemes submitted to it
are giving in the next succeeding paragraph in regard to and making its report, to ensure that the lime-stone on
the lime-stone quarries classified as category B in the exploitation, is specifically utilized only in special in-
Bhargav Committee Report. dustries having regard to its quality and is not wasted by
being utilized in industries for which high grade lime-
10. That takes us to the lime-stone quarries classified as stone is not required. The necessary funds for the pur-
category B in the Bhargav Committee Report and cat- pose of meeting the expenses which may have to be in-
egory 2 in the Working Group Report. We do not pro- curred by the members of the Bandyyopadhyay Com-
pose to clear these lime-stone quarries for continuance mittee will be provided by the State of Uttar Pradesh
of mining operations for to close them down permanently including their travelling and other allowances appro-
without further injury. We accordingly appoint a high priate to their office. The State of Uttar Pradesh will
powered Committee consisting of Mr. D. Bandyopadyay, also provide to the members of the Bandyopadhyay Com-
Secretary, Ministry for Rural Development as Chairman mittee necessary transport and other facilities for the
and Shri H.S. Ahuja, Director General, Mines Safety purpose of enabling them to discharge their functions
Dhanbad, Bihar, Shri D.N. Bhargav, Controller General, under this Order. If any notices are to be served by the
Indian Bureau of Mines, New Secretariat Building, Bandyopadhyay Committee the District Administration
277
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
of Dehradun will provide the necessary assistance for has to be paid for protecting and safeguarding the right
serving of such notices on the lessees or other interested of the people to live in healthy environment with mini-
parties. The Bandyopadhyay Committee will also be mal disturbance of ecological balance and without avoid-
entitled before expressing its opinion on the scheme or able hazard to them and to their cattle, homes and agri-
schemes submitted to it, to hear the petitioner, the inter- cultural land and undue affection of air, water and envi-
ventionists in this case and such other persons or organi- ronment. However, in order to mitigate their hardship,
zations as may be interested in maintenance and preser- we would direct the Government of India and the State
vation of healthy environment and ecological balance. of Uttar Pradesh that whenever any other area in the State
The Indian Bureau of Mines will provide secretarial fa- of Uttar Pradesh is thrown open for grant of lime-stone
cilities to the Bandyopadhyay Committee in each case or dolomite quarrying, the lessees who are displaced as
will be considered by the Court and a decision will then a result of this order shall be afforded priority in grant of
be taken whether the lime-stone quarry or quarries in lease of such area and intimation that such area is avail-
respect of which the report has been made should be al- able for grant of lease shall be given to the lessees who
lowed to be operated or not. But until these lime-stone are displaced so that they can apply for grant of lease of
quarries will not be allowed to be operated or worked such area and on the basis of such application, priority
and the District Authorities of Dehradun will take prompt may be given to them subject, of course, to their other-
and active steps for the purpose of ensuring that these wise being found fit and eligible. We have no doubt that
lime-stone quarries are not operated or worked and no while throwing open new areas for grant of lease for lime
mining activity is carried on even candlestinely. This stone or dolomite quarrying, the Government of India
order made by us will supersede any stay or any other and the State of Uttar Pradesh will take int account the
interim order obtained by the lessee of any of these lime- considerations to which we have adverted in this order.
stone quarries permitting him to carry on mining opera-
tions and notwithstanding such stay order or other in- 13. We are conscious that as a result of this order made
terim order or subsisting lease, the lessees shall not be by us, the workmen employed in the lime stone quarries
entitled to carry on any mining activity whatsoever in which have been directed to be closed down permanently
any of these lime-stone quarries and shall desist from under this Order or which may be directed to be closed
doing so. The lessees of these lime-stone quarries will down permanently after consideration of the report of
also not in the meanwhile be permitted to rectify the de- the Bandyopadhyay Committee, will be thrown out of
fects pointed out in the orders issued by the District Min- employment and even those workmen who are employed
ing Authorities but they may include the proposal for in the lime stone quarries which have been directed to be
such rectification in the scheme or schemes which they closed down temporarily pending submission of scheme
may submit to the Pandyopadhyay Committee. We may or schemes by the lessees and consideration of such
however make it clear that non rectification of the de- scheme or schemes by the Bandyopadhyay Committee,
fects pursuant to the notices issued by the District Min- will be without work for the time being. But the lime-
ing Authorities shall not be taken advantage of by the stone quarries which have been or which may be directed
State of Uttar Pradesh as a ground for terminating the to be closed down permanently will have to be reclaimed
lease or leases. and afforestation and soil conservation programme will
have to be taken up in respect of such lime stone quar-
11. We may point out that so far as the lime-stone quar- ries and we would therefore direct that immediate steps
ries at S1. Nos. 17 to 20 in category B in the Bhargav shall be taken for reclamation of the areas forming part
Committee Report are concerned we are informed that of such lime stone quarries with the help of the already
they have already been closed down and no further di- available Eco-Task Force of the Department of Environ-
rection therefore is necessary to be given in regard to ment. Government of India and the workmen who are
them save and except in regard to removal of the lime- thrown out of employment in consequence of this Order
stone, dolomite and marble chips which may already have shall, as far as practicable and in the shortest possible
been mined and which may be lying at the site for which time, be provided employment in the afforestation and
we are giving separate directions in one of the succeed- soil conservation programme to be taken up in this area.
ing paragraphs in this Order.
14. There are several applications before us for removal
12. The consequence of this Order made by us would be of lime stone, dolomite and marble chips mined from
that the lessees of lime-stone quarries which have been the quarries and being at the site and these applications
directed to be closed down permanently under this Or- also are being disposed of by this Order. So far as lime
der or which may be directed to be closed down perma- stone quarries classified as category A in the Bhargav
nently after consideration of the report of the Committee Report and/or category A in the Working
Bandopadhyay Committee, would be thrown out of busi- Group Report and falling outside the city limits of
ness in which they have invested large sums of money Mussorie are concerned, we have permitted the lessees
and expanded considerable time and effort. This would of these lime stone quarries to carry on mining opera-
undoubtedly cause hardship to them, but it is a price that tions and hence they must be allowed to remove what-
278
RURAL L ITIGATION AND ENTITLEMENT KENDRA DEHRADUN AND OTHERS V. STATE OF U.P. AND OTHERS
ever minerals are lying at the site of these lime stone December 1983 by the District Authorities became in-
quarries without any restriction whatsoever, save and flated when Shri D. Bandophadyay and Director of Geol-
except those prescribed by any statutes, rules or regula- ogy (Mines) made their assessment in January 1984 and
tions and subject to payment of royalty. So far as the thereafter the figures again got inflated if the quantity now
other lime stone quarries are concerned, whether com- claimed by the lessees as lying on the site is correct. We
prised in category A of Bhargav Committee Report or do not, however, propose to go into the question as to
category 1 of the Working Group Report and falling what was the precise quantity of minerals mined by the
within the city limits of Mussoorie or falling within cat- lessees of these limestone quarries and lying at the site at
egory B or category C of the Bhargav Committee Report the time when these lime stone quarries were closed down
or category 2 of the Working Group Report, there is a under the directions of the Bhargav Committee. We would
serious dispute between the lessees of these lime stone permit the lessees of these lime stone quarries to remove
quarries on the one hand and the petitioners and the State whatever minerals are found lying at the site or its vicin-
of Uttar Pradesh on the other as to what is the exact quan- ity, provided of course such minerals are covered by their
tity of minerals mined by the lessees and lying at the respective leases and/or quarry permits. Such removal
side. We had made an order on 15th December 1983 will be carried out and completed by the lessees within
requiring the District Magistrate Dehradun to depute four weeks from the date of this Order and it shall be
some officer either of his Department or of the Mining done in the presence of an officer not below the rank of
Department to visit the site of these lime stone quarries Deputy Collector to be nominated by the District Magis-
for the purpose of assessing the exact quantity of lime trate. Dehradun, a gazetted officer from the Mines De-
stone lying there and to report in this connection. The partment nominated by the Director of Mines and a pub-
District Magistrate, Dehradun deputed the Sub-Divisional lic spirit individual in Dehradun, other than Mr. Avdesh
Magistrates of Mussoorie and Dehradun and Tehsildar Kaushal, to be nominated by Shri D. Bandopadhyay.
(Quarry) Dehradun to inspect the 20 lime stone quarries These nominations shall be made within one week from
comprised in category C of the Bhargav Committee Re- today and they may be changed from time to time de-
port which had been ordered to be closed down under pending on the exigencies of the situation. Notice of in-
the directions of the Bhargav Committee and an affidavit tended removal of minerals lying at the site shall be given
was filed on behalf of the District Magistrate Dehradun, by the lessees to the District Magistrate Dehradun, Di-
by Kedar Singh Arya Tehsildar (Quarry) Dehradun, an- rector of Mines Dehradun and the person nominated by
nexing a chart showing the details of the minerals mined Shri D. Bandophadyay. No part of the minerals lying at
by the lessees of those lime stone quarries and lying at the site shall be removed by the lessees except in the pres-
the site. Thereafter, when again the case came up for hear- ence of the above mentioned three persons. The lessees
ing before us on 5th January 1984, we, in order to allay will on the expiry of the period of four weeks submit a
any apprehensions on the part of the lessees that the Dis- report to this Court setting out the precise quantities of
trict Authorities had not done their job correctly in as- minerals removed by them from the site pursuant to this
sessing the quantity of minerals lying at the site, appointed Order made by us. The lessees shall not be entitled to
a Committee of two officers, namely, Shri D. remove any minerals after the expiration of the period of
Bandophadyay and Director of Geology (Mines) Lucknow four weeks.
for the purpose of visiting the lime stone quarries which
had been directed to be closed down and to assess the 15. Before we close we wish to express our sense of
quantity of minerals lying on the site of those limestone appreciation for the very commendable assistance ren-
quarries after giving notice to the concerned lessees as dered to us by Shri Pramod Dayal, learned advocate ap-
also to the District Magistrate Dehradun and the repre- pearing on behalf of some of the lessees. He undertook
sentatives of the petitioners. Pursuant to this order made the responsibility of arranging the various affidavits and
by us, Shri D. Bandhopadhyay and the Director of Geol- written submissions in a proper and systematic manner
ogy (Mines) Lucknow visited the lime stone quarries com- and we must confess that but for the extremely able as-
prised in category C of the Bhargav Committee Report sistance rendered by him, it would not have been possi-
and directed to be closed down and assessed the quantity ble for us to complete the hearing of this case satisfacto-
of minerals lying at the site of each of those lime stone rily and to pass this order within such a short time. We
quarries. The quantity of minerals lying at the site, ac- would direct that the Government of India and the State
cording to Shri D. Bandophadyay and the Director of of Uttar Pradesh should each pay a sum of Rs.5,000/= to
Geology (Mines), was very much less than what was Shri Pramod Dayal for the work done by him. We may
claimed by the lessees and it does appear that though these point out that the payment to Shri Pramod Dayal is not
lime stone quarries were directed to be closed down, ille- in lieu of costs but is an additional remuneration which
gal mining was being carried on clandestinely, because we are directing to be paid in recognition of the very
otherwise it is difficult to understand how the figures of valuable assistance rendered by him to the Court.
the quantity of minerals lying at the site as assessed in
279
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
PLD 1994 SUPREME COURT 102
PRESENT: SALEEM AKHTAR, J
IN RE: HUMAN RIGHTS CASE (ENVIRONMENT POLLUTION IN
BALOCHISTAN)
HUMAN RIGHTS CASE NO. 31-K/92(Q), DECIDED ON
27TH SEPTEMBER 1992.
CONSTITUTION OF PAKISTAN (1973)
——Arts.184(3) & 9— Public Interest Litigation—— land of Balochistan, it is bound to create environmental
Environmental hazard and pollution in Balochistan—— hazard and pollution. This act will violate Article 9. It is,
Supreme Court, having noticed a news item in a daily therefore, necessary to first enquire from the Chief Sec-
newspaper that nuclear or industrial waste was to be retary, Balochistan whether coastal land of Balochistan
dumped in Balochistan which was violative of Art.9 of or any area within the territorial water of Pakistan has
the Constitution, ordered the office to enquire from Chief been or is being allotted to any person. If any allotment
Secretary of Balochistan whether coastal land of has been made or applicants have applied for allotment,
Balochistan or any area within the territorial waters of then full particulars should be supplied.
Pakistan had been or was being allotted to any person
and if any allotment had been made or applicants had A letter may also be written to the Editor ‘Dawn’ refer-
applied for allotment, their full particulars be supplied- ring to the news item requesting him to supply further
Plots having been allotted by Balochistan Development particulars or give the name and address of the reporter
Authority, Supreme Court ordered that no one will ap- of APP from whom necessary information may be ob-
ply for allotment of plot for dumping, nuclear or indus- tained.
trial waste—Supreme Court further gave the guidelines
for allotment of plots in the area. (Sd.)
Justice Saleem Akhtar
ORDER
I have noticed a news item reported by APP published in ORDER
‘Dawn’ dated 3-7-1992 entitled “N-Waste to be dumped
in Balochistan”. In compliance with the notice issued on 9th July 1992,
the Chief Secretary had made inquiries from various
In the report apprehension has been expressed that busi- departments, namely, from the Commissioner of Makran,
ness tycoons are making attempts to purchase coastal Commissioner of Kalat Division and also from the Board
area of Balochistan and convert it into dumping ground of Revenue who had submitted their reports which were
for waste material which may be a big hazard to the de- forwarded to this Court. From the reports submitted, it
veloping ports of Guwadar, Pasni, Ormara and Jiwani. seems that besides the land allotted to the Pakistan Navy
The coast land of Balochistan is about 450 miles long. and Maritime Agency for defence purposes, 112 ship-
To dump waste materials including nuclear waste from breaking plots measuring 336 acres in Gadani Beach,
the developed countries would not only be hazard to the Lasbella District have been allotted to ship breakers for
health of the people but also to the environment and the ship-breaking purposes by the Balochistan Development
marine life in the region. Authority. Furthermore, land measuring 29.2.2 acres has
been allotted to one Muhammad Anwar son of Qadire
In my view, if nuclear waste is dumped on the coastal Bukhsh for agriculture purposes. The Chief Secretary
280
HUMAN R IGHTS CASE
while giving details has stated that the allotment of land their favour.
for ship-breaking was made by the Balochistan Devel-
opment Authority while the plot measuring 29.2.2 acres (2) The Government of Balochistan and the Balochistan
was allotted by the Chief Minister on the recommenda- Development Authority are directed that if any applica-
tion of Balochistan Development Authority. tion for allotment of coastal land is pending or in future
any party applies for allotment of such land then full
The officials present have reported that no plot has been particulars of such applicants shall be supplied to the
allotted to any party for dumping nuclear waste. The Assistant Registrar, Supreme Court of Pakistan, Karachi
Commissioner, Makran Division has pointed out that the before making any allotment to any such party.
law enforcing agencies on the high seas are always on
the alert and can locate any vessel from a distance of (3) The Government functionaries, particularly the au-
more than 500 miles. thorities which are charged with the duty to allot the land
on coastal area should insert a condition in the allotment
It may be noted that no one will apply for allotment of letter/license/lease that the allottee/tenant shall not use
land for dumping nuclear or industrial waste. This would the land for dumping, treating, burying or destroying by
be a clandestine act in the garb of a legal and proper any device waste of any nature including industrial or
business activity. The authorities are therefore not only nuclear waste in any form. The Balochistan Develop-
to be vigilant in checking the vessels but regularly check ment Authority should also obtain similar undertaking
that the allottees are not engaged in dumping industrial from all the allottee to whom the allotment has been made
or nuclear waste of any nature on the land or in the sea for ship-breaking, agriculture or any other purpose what-
or destroying it by any device. soever.
It seems that the plots have been allotted by Balochistan Before parting with the order I record my appreciation
Development Authority and all the relevant terms and for the officials present who have shown their interest
conditions will be available with them. In these circum- and keenness in tackling the problem. Such eagerness
stances, the following interim order is passed: coupled with public awareness can eliminate much of
the problems creating health hazard to the citizens.
(1) The Balochistan Development Authority should
submit to the Assistant Registrar, Supreme Court, A copy of this order be sent to all the officers present
Karachi, a list of persons to whom land on the coastal and the Balochistan Development Authority, Quetta.
area of Balochistan have been allotted giving their name
and full address along with copies of the letters of allot-
ment, lease or license which may have been issued in Order accordingly
281
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
1994 S C M R 2061
(SUPREME COURT OF PAKISTAN)
PRESENT: MUHAMMAD RAFIQ TARAR AND SALEEM AKHTAR, JJ
GENERAL SECRETARY, WEST PAKISTAN SALT MINERS LABOUR
UNION (CBA) KHEWRAL, JHELUM — PETITIONER
v.
THE DIRECTOR, INDUSTRIES AND MINERAL
DEVELOPMENT, PUNJAB, LAHORE — RESPONDENT
Human Rights Case No. 120 of 1993, decided on 12th July, 994
(a) Constitution of Pakistan (1973)— water catchment area has been reduced. The mining
operations in this area pose serious danger of cracks,
—Arts. 184(3), 9 & 14—Human rights case— punctures and leakage in the rocks and ravines which
Constitutional petition——Maintainability—Petitioners may lead to contamination or drying up of the springs.
seeking enforcement of the residents to have clear and These are well-known and acknowledged dangers to the
unpolluted water, their apprehension being that in case water source and have been mentioned in the report
the miners were allowed to continue their activities, submitted by the Committee. In such a situation when
which were extended in the water catchment area, the the water catchment area seems to have been reduced to
watercourse, reservoir and the pipelines would get its minimum, the mining activities have completely
contaminated—- Held, water which was necessary for surrounded the water catchment area and are extending
existence of life, if polluted, or contaminated, would nearer to the source spring, it seems necessary to
cause serious threat to human existence and in such a immediately take measures to protect the water sources
situation, persons exposed to such danger were entitled and springs. It is fortunate that so far as major mishap
to claim that their fundamental rights of life guaranteed has occurred, but the more mining activities increase and
to them by the Constitution had been violated—Case for the catchment area is reduced, the danger of bursting,
enforcement of fundamental rights by giving directions leaking and contamination also increases. In this
or passing any orders by Supreme Court restraining the situation, if the petitioners complain, are they not justified
parties and Authorities from committing such violation to seek protection of their right to have clean water free
or to perform statutory duties was made out and petition from contamination and pollution. Article 9 of the
under Art. 184(3) of Constitution of Pakistan was Constitution provides that “no person shall be deprived
maintained. of life or liberty save in accordance with law”. The word
`life’ has to be given an extended meaning and cannot be
The claim of the petitioners in the present case though restricted to vegetative life or mere animal existence. In
formed in general terms basically seeks enforcement of hilly areas where access to water is scarce, difficult are
the right of right of the residents to have clean and limited, the right to have water free from pollution and
unpolluted water. Their apprehension is that in case the contamination is a right to life itself. This does not mean
miners are allowed to continued their activities, which that persons residing in other parts of the country where
are extended in the water catchment area, the water is available in abundance, do not have such right.
watercourse, reservoir and the pipelines will get The right to have unpolluted water is the right of every
contaminated . (p. 2068)A person wherever he lives.
With the passage of time, population has grown and The word ‘life’ in the Constitution has not been used in a
number of mining leases in the catchment areas has limited manner. A wide meaning should be given to enable
increased, but the water source remains the same and a man not only to sustain life but to enjoy it. Under the
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GENERAL SECRETARY WEST PAKISTANT SALT M INERS LABOUR UNION V. THE DIRECTOR OF INDUSTRIES AND M INERAL DEVELOPMENT
Constitution, Article 14 provides that the dignity of man, into questions of fact as well as independently by recording
and, subject to law, the privacy of home shall be inviolable. evidence, appointing commissions or any other reasonable
The fundamental right to preserve and protect the dignity and legal manner to ascertain the correct position. Article
of man under article 14 is unparalleled and could be found 184(3) provides that the Supreme Court has the power to
only in few Constitutions of the world. The Constitution make an order of the nature mentioned in Article 199. This
guarantees dignity of man and also right of ‘life’ under is a guideline for exercise of jurisdiction under this
Article 9 and if both are read together, question will arise provision without restrictions and restraints imposed on
whether a person can be said to have dignity of man if his the High Court. The fact that the order or direction should
right to life is below bare necessity line without proper be in the nature mentioned in Article 199, enlarges the
food, clothing, shelter, education, health care, clean scope of granting relief which may not be exactly as
atmosphere and unpolluted environment. provided under Article 199, but may be similar to it or in
the same nature and the relief so granted by the Supreme
In cases where life of citizens is degraded, the quality of Court can be moulded according to the facts and
life is adversely affected and health hazards are created circumstances of each case.
affecting a large number of people, the Court in exercise
of its jurisdiction under Article 184(3) of the Constitution (c) Constitution of Pakistan (1973)
may grant relief to the extent of stopping the function of
factories which create pollution and environmental —Arts. 184(3), 9 & 14—Human rights case—Petitioners
degradation seeking enforcement of the right of residents to have clean
and unpolluted water, their apprehensions being that in
Water has been considered source of life in this world. case the miners were allowed to continue their activities,
Without water there can be no life. History bears testimony which were extended in the water catchment areas, the
that due to famine and scarcity of water, civilization have watercourse, reservoir, and the pipelines would get
vanished, green lands have turned into deserts and arid contaminated—Supreme Court while entertaining the
zones completely destroying the life not only of human petition filed under Article 184(3) of the Constitution of
beings, but animal life as well. Therefore, water, which is Pakistan issued a number of directions to the concerned
necessary for existence of life, if polluted, or contaminated, departments and directed the miners to shift within four
will cause serious threat to human existence. In such a months, the location of the mouth of the specified mine at
situation, persons exposed to such dangers are entitled to a safe distance from the stream and small reservoir in such
claim that their fundamental right of life guaranteed to a manner that they were not polluted by mine debris,
them by the Constitution has been violated and there is a carbonised material and water spilling out from the mines
case for enforcement of fundamental rights by giving to the satisfaction of the Commission appointed by the
directions or passing any orders to restrain the parties and Supreme Court for the purposes.
authorities from committing such violations or to perform
their statutory duties. The petition was found sustainable. Petitioner in person.
Shehla Zia v. WAPDA PLD 1994 SC 693; M.C. Mehta v. Sardar M. Aslam, Advocate Supreme Court for Pakistan
Union of India AIR 1988 SC 1115 and M.C. Mehta v. Mineral Development Corporation.
Union of India AIR 1988 SC 1037 ref.
M. Munir Piracha, Advocate Supreme Court for the Punjab
(b) Constitution of Pakistan (1973) Coal Co.
—Art. 194 (3)—Scope and extent of jurisdiction of Syed Niaz Ali Shah, Addl, A.G., b. for the Government of
Supreme Court under Art. 184(3) of the Constitution of Punjab.
Pakistan.
Date of hearing: 12 April, 1994.
The scope and extent of the jurisdiction exercised by
Supreme Court under Article 184(3) under which, in cases
where questions of public importance with reference to JUDGEMENT
the enforcement of fundamental rights is involved,
direction or order of the nature as mentioned in Article SALEEM AKHTAR, J,—This petition under Article
199 can be given or passed. 184(3) of the Constitution was filed complaining against
the pollution of water supply source to the residents and
In human rights cases/public interest litigation under mine workers of Khewra. They claim to be settled there
Article 184(3), the procedural trappings and restrictions for generations and the water supply was arranged by
of being an aggrieved persons and other similar technical Pakistan Mineral Development Corporation (PMDC)
objections cannot bar the jurisdiction of the Court. Supreme through a pipeline connecting the spring and taking water
Court has vast power under Article 184(3) to investigate to the reservoir. It has been alleged that although water
283
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
catchment area was reserved and no lease for coal mines catchment area was much larger than it exists now. It would
was to be granted, the authorities concerned particularly have been at least six to seven times more than the present
the Director, Industries and Mineral Development, area. The location of PCC (No. 27A) is also shown whereas
Government of Punjab, granted lease and reduced the water the area of M/s A. Majeed & Co has also been mentioned.
catchment area. The result was that the poisonous water It seems that after the year 1950 the mining leases were
coming out of the mines pollutes the water reservoir and it granted in the original catchment area, which has been
is a health hazard. It was further alleged that the allotment reduced to about 1/8th of its original measurement as
and grant of lease to the miners in the water catchment claimed by the petition and PMDC. It was in the year 1981
area is illegal and mala fide. It has been prayed that such that a small area now measuring 545.09 acres was
leases may be cancelled and the residents may be saved absolutely forbidden for allotment for mining purposes.
from the health hazard created by the miners and the In this regard reference has been made to the report of a
authorities concerned. The case was processed in the office high-powered committee constituted in the year 1981 to
and prima facie it was established that if the operation of dispose of the application of M/s. Rasco & Co. for grant
coal mines is granted in the water catchment area, it is of prospecting license for coal near ‘Nali’, District Jhelum.
likely to pollute the water resources, which may be The Committee was constituted by the Secretary, Industries
contaminated with the water flowing out of the mine holes and Mineral Development and consisted of:-
during operation. Consequently, cognizance was taken
under Article 184(3) of the Constitution and notice was (1) Director of Industries Mineral Development, Punjab,
issued to PMDC, Director, Industries and Mineral Lahore.
Development, Government of Punjab through Advocate-
General and M/s. Punjab Coal Company (PCC). In (2) Deputy Commissioner, Jhelum.
pursuance of the notice the petitioner submitted its detailed
note supported by documents. Similarly, PMDC and (3) Chief Inspector of Mines, Punjab, Lahore.
respondent No. 1 submitted their replies. PCC and M/s A
Majeed & Co., to whom leases were granted, also filed (4) Superintending Engineer, Public Health Engineering,
their replies. In the present case the main contestant seems Circle B. Rawalpindi.
to be PCC.
(5) Representative of Pakistan Mineral Development
2. The history of these coal mines particularly in the corporation.
water catchment area goes back to the early part of the
century when during British days the water catchment area (6) Assistant Commissioner, Pind Dadan Khan.
was reserved and grant of mining lease was prohibited.
PMDC has filed a copy of the letter No. 78 C & dated 31- the committee was authorised to co-opt any other member.
1-1911 from Mr. R.A. Munt, ICS, Financial Secretary to The terms of reference were:-
the Government of Punjab addressed to the Commissioner,
N.I. Salt, Revenue, which reads as follows:- (i) Whether or not this is a catchment area for water sup-
ply of Khewra Town and Dandot?
“In reply to your letter No. 2576 dated 22nd October,
regarding the coal mining operations in the Salt Range (ii) Whether there is a natural spring in the area for sup-
in the Jhelum District, I am directed to say that the ply of water to these towns?
Lieutenant Governor agrees to the proposals contained
in paragraph 4 of your letter under reply. I am to add,
(iii) Whether mining would in any way affect or contami-
however, that His Honour understands that the preser-
vation of the Khewra Water Supply is real ground for nate the water?
the reservation of this area which lies to the north of
the Mayo Salt Mine.” (iv) Whether alternative water supply schemes for
Khewra etc. have been implemented and are on
Other related letters referred and subsequent correspondent ground?
in this regard have not been filed, but none of the official
respondents appearing have disputed this letter. From this (v) Also the reaction of the local pollution regarding
letter it seems that even at that time for the preservation of mining in the area?
the Khewra water supply an area was separately reserved
while granting lease for mining purposes. Initially the area The committee after visiting the site observed that the area
of the water catchment was alleged to be 4161 acres which fell within the reserved water catchment zone and referred
was declared as restricted area. PMDC has filed a plan in to the decision of the Mines Committee of 22-2-1981 that
which the original water catchment area has been shown. no further mining concession should be granted within this
It also mentions the present water catchment area, which particular area forming the water catchment zone for the
has been reduced to 545.09 acres. A visual inspection of water supply scheme PMDC a scheme mainly serving the
this document clearly gives an idea that the original water population of Khewra Town.
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GENERAL SECRETARY WEST PAKISTANT SALT M INERS LABOUR UNION V. THE DIRECTOR OF INDUSTRIES AND M INERAL DEVELOPMENT
It further reported as follows:- water zone of the locality was punctured. This adversely
affected the water source in the area.”
“The major spring located in this area is called `Mitha
Pattan’. It is a collection of many smaller springs The Committee also seriously took note of the fact that
originating from within this area. The `Mitha Pattan’ spring the water rights of the miners which stand established since
has an outlet of about 21ac gallons per day. 1911, should always be taken into consideration. The
Committee recommended that:
According to the assessment of Superintendent Engineer,
Public Health Engineering Circle No. II, Rawalpindi this “The area, declared restricted by the Mines Committee in
source of water caters to at least 60% to 70% of the needs 1981, should continue to enjoy this status. The Committee
of Khewra Town. The other two sources of water are the also recommends that demarcation of past leases granted
water supply scheme of Municipal Committee, Khewra in the adjoining areas be re-checked so as to ensure that
and one outlet from the Imperial Chemical Industries’ no one violates the boundaries of this restricted area.”
waterworks. The municipal water supply scheme is
catering for only up to 15% of the needs of the local This report gives a clear picture of geological, geographical
population while the outlet from the waterworks of and historical background of the present controversy. The
Imperial Chemical Industries contributes only to the extent claim of the petitioners though formed in general terms
of 5% in this regard. basically seeks enforcement of the right of the residents to
have clean and unpolluted water. Their apprehension is
It was also brought out by the Superintending Engineer, that in case the miners are allowed to continue their
Public Health Engineering Department and conceded by activities, which are extended in the water catchment area,
the Chairman, Town Committee, Khewra that the water the water source, reservoir and the pipelines will get
available from the municipality’s water supply scheme is contaminated.
not of good quality. As such, the only major source of
drinking water for Khewra Town is the Mitha Pattan spring 3. In its reply, PCC besides taking preliminary legal
located in the area in question.” objection regarding maintainability, has pleaded that the
lease was granted to it in the year 1950 for 30 years and it
As regards water contamination and pollution the has been renewed on 1-11-1980 for another 20 years. It
Committee after referring to the structural behavior of the has also been stated that the leased area stretches to the
area as explained by the geological map, observed: north separated by a deep and considerably wide ravine
from other mining area allocated to as many as 18 different
“This map clearly indicates that contours in the area form companies carrying out the same business in similar
a cup-shaped valley, in which the water from smaller circumstances and conditions. This area is outside the
springs is joined into a main spring, i.e. `Mitha Pattan’. alleged catchment area declared by the Ministry of
Industry. The water reservoir collects water solely from
A number of lithological units are exposed at different natural spring. The natural spring and the water reservoir
spots. Hill cocks of Sakesar Limestone which are regarded both are situated at a higher point from the mining area of
as a cap-rock for coal deposits are also visible in this area PCC and are separated by a huge and deep ravine. The
for which M/s Rasco & Company has applied. However, mining activities cannot affect the natural spring or
these hillocks are irregular and highly disturbed. There reservoir. The water collected in reservoir is supplied to
are a number of visible ‘faults’, fractures and joints in the the workers colony through two pipes, one of which stands
area. The relevant geological data indicate that the ‘Patella disconnected by PMDC. Sometimes water downstream
Shales’ which is the coal bearing formation in the range, overflows which is not used by anybody. On a similar
is very close to the springs. Any sub-surface and complaint that due to the mining activity of PCC, water
underground mining activity in this area will pose the reservoir is contaminated and that mining activity might
following two threats to the water reservoir: disturb natural springs, the matter was considered by
respondent No. 1 on an appeal from the order of the Leasing
(1) Water may leak through the mines which, in turn, Authority where it was held that according to the
can dry the springs. demarcation by the Committee comprising representatives
of PCC, PMDC and the Directorate, mine 27-A falls
(2) pollute the water in the catchment area. outside the restricted area, but within 50 metres from the
boundary within the leased area of PCC. The Leasing
During the proceedings of the meeting of the Committee, Authority had granted land for working of this mine subject
a specific reference was made to a past incident involving to three conditions which included installation of second
the installation of a mining tunnel by the Pakistan Mineral pipeline by PMDC, cost of which would be borne equally
Development Corporation near Pir Jehnia, District by PMDC and PCC, the water reservoir was to be enlarged
Chakwal. The terrain was similar to the area under and that a retaining wall would be constructed by PCC
discussion. While driving the tunnels, the underground near the mouth of mine 27-A. The PCC has entirely relied
285
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
upon this order and claim that retaining wall has been reduced. The mining operations in this area pose serious
constructed, but the petitioners allege that the water danger of cracks, punctures and leakage in the rocks and
overflowing from the mines which is admittedly a ravines which may lead to contamination or drying up of
poisonous water and a health hazard, is contaminating the the springs. These are well-known and acknowledged
water reservoir. M/s. A. Majeed & Co. has also submitted dangers to the water source and have been mentioned in
reply denying the claim made by the petitioners. Apart the report submitted by the Committee. In such a situation
from stating that Mitha Pattan is the water source and the when the water catchment area seems to have been reduced
reservoir is situated at such a place that a question of to its minimum, the mining activities have completely
contamination does not arise, it further stresses that huge surrounded the water catchment area and are extending to
investments have been made on the working of the mines, the source spring, it seems necessary to immediately take
due to operation of mines many workers and their families measures to protect the water sources and springs. It is
are settled and are earning their livelihood. Furthermore fortunate that so far no major mishap has occurred, but
there are various Government authorities authorised to see the more mining activities increase and the catchment area
that the miners work in a proper and legal manner and is reduced, the danger of bursting, leaking and
further that water source is not contaminated. contamination also increases. In this situation, if the
petitioners complain, are they not justified to seek
4. We have heard all the parties present. Mr. Munir protection of their right to have clean water free from
Piracha, learned ASC for PCC contended that the facts of contamination and pollution. Article 9 of the Constitution
the case do not warrant any action under Article 184(3) as provides that “no person shall be deprived of life or liberty
the petitioners have not shown that any fundamental right save in accordance with law”. The word `life’ has to be
has been violated and that a question of public importance given an extended meaning and cannot be restricted to
is involved with reference to the enforcement of the vegetative life or mere animal existence. In hilly areas
fundamental rights. The petitioners’ complaint is about the where access to water is scarce, difficult or limited, the
contamination of the water reservoir. During arguments it right to have water free from pollution and contamination
was also contended that if the mining operation is is a right to life itself. This does not mean that persons
continued, the water resources of Mitha Pattan will be residing in other parts of the country where water is
polluted, destroyed or dried up. From the statements, available in abundance do not have such right. The right
background and the records which have been produced to have unpolluted water is the right of every person
and have not been disputed or rebutted, the picture clearly wherever he lives. Recently in Shehla, Zia v. WAPDA (H.R.
emerges that the petitioner and the other workers Case No. 15-K/1992=PLD 1994 SC 693) while dealing
numbering 35000 reside in an area in Khewra who are with Article 9, one of us (Saleem Akhtar, J.) observed as
mostly engaged in the mining work. Almost from about a follows:-
century the residents of the area were provided water
through Mitha Pattan, which receives water from several “The word `life’ in the Constitution has not been used in a
small springs in the area and it serves as a reservoir for limited manner. A wide meaning should be given to enable
supply of water to the residents of that area. The location a man not only to sustain life but to enjoy it. Under our
and geographical position of these springs and Mitha attan Constitution, Article 14 provides that the dignity of man
seems to have been taken into consideration as far back as and subject to law the privacy of home shall be inviolable.
in the 1911 when it was felt necessary that the water The fundamental right to preserve and protect the dignity
catchment area which is the source to supply water to the of man under Article 14 is unparalleled and could be found
residents should not be touched, endangered, injured or only in few Constitutions of the world. The Constitution
impaired by mining activities. Mining activities were, guarantees dignity of man and also right to `life’ under
therefore, prohibited in that area and this state continued Article 9 and if both are read together, question will arise
up to the present time with the difference that the total whether a person can be said to have dignity of man if his
area was reduced and mining leases were frequently right to life is below bare necessity line without proper
granted in the water catchment area. The area which at food, clothing, shelter, education, health care, clean
one time is claimed to be more than 4000 acres, has been atmosphere and unpolluted environment.”
reduced to 545.9 acres which the Mining Committee by
its decision dated 22-2-1981 declared restricted water area It was further observed:-
and all types of mining activities were completely
prohibited. Letters and instances have been referred to “In M.C. Mehta v. Union of India (AIR 1988 SC 1115)
show that this policy was enforced with vigour and and M.C. Mehta v. Union of India (AIR 19889 SC 1037)
strictness and applications for mining leases and licenses the court on petition filed by a citizen taking note of the
in the water catchment area were not granted. However, fact that the municipal sewage and industrial effluents
the irony of situation is that with the passage of time, from tanneries were being thrown in River Ganges
population has grown and number of mining leases in the whereby it was completely polluted, the tanneries were
catchment areas has increased, but the water source closed down. These judgements go a long way to show
remains the same and the water catchment area has been that in cases where life of citizens is degraded, the quality
286
GENERAL SECRETARY WEST PAKISTANT SALT M INERS LABOUR UNION V. THE DIRECTOR OF INDUSTRIES AND M INERAL DEVELOPMENT
of life is adversely affected and health hazards are creating mentioned in Article 199. This is a guideline for exercise
affected a large number of people, the Court in exercise of jurisdiction under this provision without restrictions
of its jurisdiction under Article 184(3) of the Constitution and restraints imposed on the High Court. The fact that
may grant relief to the extent of stopping the functioning the order or direction should be in the nature mentioned
of factories which create pollution and environmental in Article 199, enlarges the scope of granting relief which
degradation.” may not be exactly as provided under Article 199, but
may be similar to it or in the same nature and the relief so
The petitioners’ demand here is the barest minimum. Water granted by this Court can be moulded according to the
has been considered source of life in this world. Without facts and circumstances of each case. While raising this
water there can be no life. History bears testimony that contention the learned counsel has referred to the order
due to famine and scarcity of water, civilizations have passed by the Secretary, Government of the Punjab,
vanished, green lands have turned into deserts and arid referred to above in appeal from the order of the Licensing
zones completely destroying the life not only of human Authority. The appellate authority has confirmed the order
beings, but animal life as well. Therefore, water, which is of the Licensing Authority with certain restrictions and
necessary for existence of life, if polluted, or safeguards provided in it. The location of mine 27A is
contaminated, will cause serious threat to human not disputed being completely adjacent to the present
existence. In such a situation, persons exposed to such water catchment area. Another salient point which emerges
danger are entitled to claim that their fundamental right is that it is within 50 metres from the boundary within the
of life guaranteed to them by the Constitution has been lease area of P.C.C. From the plans produced, it is clear
violated and there is a case for enforcement of fundamental that the mouth of the mine is right on the boundary line of
rights by giving directions or passing any orders to restrain the catchment area which is a reduced area to the barest
the parties and authorities from committing such violations minimum. If it could not have posed any danger to the
or to perform their statutory duties. In our view the petition water source, why was it found necessary by both the
is maintainable. authorities to impose a condition that a retaining wall be
constructed by P.C.C. This by itself admits that the very
5. The next contention of the learned counsel is that existence of mine 27A and its mouth in the prohibited
the question whether mining activity could possibly area does pose a serious danger and threat to the water
pollute or diminish the supply, is a question of fact and catchment area and reservoir. P.C.C. has not filed its lease
two authorities have recorded findings on it, therefore, deed. However, M/s A. Majeed & Co. have filed a lease
such question cannot be raised before and determined by deed and the standard form of lease is the same in almost
this Court. In dealing with this contention, one has to keep every case. Clause (12) of the lease deed prohibits mining
in mind the scope and extent of the jurisdiction exercised operation or workings to be carried on in or under the
by this Court under Article 184(3) under which, in cases said land at any point within a distance of 50 yards from
where question of public importance with reference to the boundaries of the said land except with the consent in
the enforcement of fundamental rights is involved, writing of the Licensing Authority. P.C.C. could not have
direction or order of the nature as mentioned in Article carried out mining work within 50 metes from the
199 can be given or passed. Article 184(3) reads as boundary. It is an admitted position as is obvious from
follows:- the order of the Secretary, Government of the Punjab,
Industries and Mineral Development that P.C.C. is
“184.(1)&(2)............. operating and working within 50 meters from the
boundary. It is very close to the boundary of the catchment
(3) Without prejudice to the provisions of Article 199, area. The object of keeping distance of 50 metres from
the Supreme Court shall, if it considers that a question of the boundary wall is to provide safeguard to the adjoining
public importance with reference to the enforcement of land. There is nothing on record to show that the authorities
any of the Fundamental Rights conferred by chapter 1 of concerned have at any time applied their mind or passed
Part II is involved, have the power to make an order of the any specific order in writing permitting P.C.C. to carry
nature mentioned in the said Article.” out operation or mining work within 50 meters from the
boundary. The general permission granted and the order
It is well-settled that in human rights cases/public interest of the Leasing Authority do not refer to such special
litigation under Article 184(3), the procedural trappings permission as required by the lease deed nor can the
and restrictions, precondition of being an aggrieved person permission to carry out mining operation amount to such
and other similar technical objections cannot bar the a permission. Such a permission should be specific in
jurisdiction of the Court. This Court has vast power under nature with reference to the distance of 50 metres from
Article 184(3) to investigate into questions of fact as well the boundary. General permission granted and relied upon
independently by recording evidence, appointing can be of no avail to P.C.C. It is therefore clearly
commission or any other reasonable and legal manner to established that P.C.C. is carrying on mining work adjacent
ascertain the correct position. Article 184(3) provides that to the catchment area and within the radius of 50 metres
this Court has the power to make order of the nature from the boundary. It is strange that the respondent did
287
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
not object to P.C.C. to open the mine mouth adjacent to (c) Director, Industries and Mineral Development, La-
the water catchment area. As the lease in this prohibited hore.
area had been granted, it was the duty of the respondent
to ensure that the lessee does not open the mine mouth so (d) A member nominated by PMDC.
near the boundary. Conscious of the fact that P.C.C.’s
mining operation would cause pollution, the Leasing (e) A member co-opted by the aforestated members of
Authority ordered for joint inspection by PMDC and the Commission.
P.C.C. to ensure that no further pollution is caused. But
this arrangement did not work. It has been contended that The Commission shall have power of inspection, recording
as P.C.C.’s mine is located about one thousand yards evidence, examining witnesses including the powers as
downstream from the water tank/reservoir, which is provided by Order XXVI of the Civil Procedure Code. If,
approximately at a height of 200 ft. from the b ed of the on the report of the Commission, it transpires that shifting
stream, there can be no possibility of causing pollution. of the mine mouth is not possible, then the case shall be
This contention completely overlooks the fact that about placed before the Court for further consideration including
300/400 yards from the mine mouth of P.C.C. there exists the question whether the operation of mine No. 27A should
an open reservoir built by PMDC in which overflown be completely stopped;
water from the big water reservoir is collected and
distributed to the residents through a pipeline. This small (ii) PMDC is directed to instal a second pipeline con-
reservoir is polluted by the mine debris and poisonous necting the top level reservoir;
water as stated in the inspection report of the Mineral
Development Officer prepared in January 1992. It (iii) PMDC will enlarge the top level water reservoir and
concludes as follows:- construct wall of reservoir cost of which will be
shared equally by PMDC and P.C.C.;
“It is in the fitness of things and also in the interest
of the public that the lease firm (appellant) may be (iv) P.C.C. and all the miners operating adjacent to the
advised to set up a device which should protect the water catchment area shall take such measures to the
falling debris into the stream and they may also be satisfaction of the Commission which may prevent
allowed to work in the said mine by giving such as-
pollution of the water source reservoir, stream be-
surance. Whereas M/s. Pakistan Mineral Develop-
ment Corporation may also be advised to take fur- low and water catchment area;
ther steps for protection of water pipeline from main
water tank and abandon the small water reservoir as (v) respondent No. 1 and all authorities empowered and
it has a little area to settle down the heavier material authorised to grant, renew or extend the mining lease
which is mixed in the stream channel.” or license, are ordered:-
This report has been relied upon by the concerned (a) not to grant any fresh lease/license/permission to
authorities, but they do not seem to have taken any carry out mining work in the area which prior to 1981
effective steps to stop pollution of stream and small was water catchment area;
reservoir except that three conditions were imposed which
have remained effective. (b) not to renew or extend the existing lease/license of
the mines mentioned in the Schedule to the judge-
6. In view of the above discussion:- ment without prior permission of this Court;
(i) P.C.C. is directed to shift within four months, the (vi) PMDC and P.C.C. shall bear the cost of the Com-
location of the mouth of mine No. 27A at a safe dis- mission expenses and initially Rs. 10,000 shall be
tance from the stream and small reservoir in such a deposited by each of them with the Court within two
manner that they are not polluted by mine debris, weeks.
carbonised material and water spilled out from the
mines to the satisfaction of the Commission consist- All the parties concerned including the persons
ing of the following members:- mentioned in the Schedule and members of the
Commission be informed of this judgement. The
(a) Dr. Parvez Hasan, Advocate, Lahore (Chairman). Commission shall submit its report within six weeks
(b) Dr. Tariq Banuri.
288
COMMISSIONER OF LANDS V COASTAL AQUACULTURE LTD
SCHEDULE
S. No. NAME OF PARTY DATE OF GRANT VALID UP TO
1. M/s Punjab Coal Co. 1-11-1950 1-11-2000
2. M/s Fazal Din & Co. 1-11-1950 31-10-2005
3. M/s A. Majid & Co. 11-11-1950 31-10-2000
4. Mr. Saleem Jamal 15-1-1953 9-11-2013
5. M/s Rehman Aslam Colleries 13-10-1960 12-2-2008
6. P.M.D.C. 1-7-1962 30-6-1992
7. Punjab Min. Dev. Corp. 28-8-1962 23-9-2000
8. Ch. Noor Alam 1964 8-5-2005
9. Malik Ali Shah 31-5-1968 1-12-1997
10. Al-Madad Coal Co. 31-5-1968 22-6-2008
11. M/s Bilal Mineral Associates 27-3-1975 6-3-2002
12. Malik Abdur Rashid 9-5-1978 7-1999
13. Col Anayyat Hussein 16-12-1981 1-2000
order accordingly
289
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 423 OF 1996
NIAZ MOHAMED JAN MOHAMED — PLAINTIFF
v.
1. COMMISSIONER OF LANDS
2. MUNICIPAL COUNCIL OF MOMBASA
3. NANDLAL JIVRAJ SHAH )
4. VIMAL NANDLAL SHAH T/A JIVACO AGENCIES )
5. MEHUL N. SHAH ) DEFENDANTS
RULING ments of Title to the Registrar of Titles Mombasa for
rectification. The Notice was copied to amongst others
NIAZ MOHAMED JAN MOHAMED (hereinafter re- The Municipal Council of Mombasa. The Director of
ferred to as NIAZ) has at all times material to this suit Surveys, the Chief Engineer (Roads) Ministry of Works
been the Registered Proprietor of all that freehold prop- with a caption that
erty measuring approximately 3.63 Acres, known as Plot
No. 32 Section I Mainland North in Kisauni/Nyali area “Construction of road will start with immediate ef-
within Mombasa Municipality. fect”.
During the construction of the New Nyali Bridge in 1979, And so it did and was completed in due course and
it became necessary to construct a new access road to handed over by the contractors. It was then opened for
Kisauni and Nyali Estate. When that road was surveyed use by the public.
it traversed Plot No. 32, as it must have, other plots, and
therefore the Land Acquisition Act had to be invoked to Niaz thereafter enjoyed a road frontage and direct ac-
acquire the areas traversed by that road. As respects Plot cess to that road until November 1995 when it is alleged
No. 32, it was considered that an area of approximately the Commissioner of Lands, with the connivance, con-
0.37 of an Acre would be covered by the road and there- sent or knowledge of the Municipal Council of Mom-
fore machinery was put in place to acquire that portion. basa created a new leasehold Title from a small portion
which remained uncovered by the tarmac road, measur-
The Acquisition was carried out through the Commis- ing approximately 0.14 Acres and allocated this to
sioner of Lands who published Kenya Gazette Notices NANDLAL JIVRAJ SHAH, VIMAL NANDLAL SHAH
on 18.5.1979. On 13.12.1979, he registered against the and MEHUL SHAH all Trading as JIVACO AGENCIES
Title a “Notice of taking possession and vesting of land (hereinafter referred to as JIVACO). The Title issued
in the Government” under Section 19(1) of the Land was given LR No. 9665 Sec.I MN and Grant No. CR
Acquisition Act and asked Niaz to surrender the docu- 28028. The 99 year tenure commenced on 1.11.95.
290
NIAZ MOHAMED JAN MOHAMMED V. COMMISSIONER OF LANDS & OTHERS
Niaz was piqued about this discovery. He saw not only respond thereto or attend court on the hearing date ei-
a deliberate attempt to interfere with his easement rights ther personally or through the Attorney General. The
of access to the new road and its road reserve, but also a Council was also served and entered appearance and filed
callous attempt to unlawfully alienate public land to pri- its defence. But it made no response to the application
vate developers. The threats by the new allottees to com- by filing any grounds of opposition or any affidavits in
mence development or alienate the plot to other persons reply. Their Counsel Mr. Iha attended court on the hear-
despite protestations by Niaz, compelled him to come to ing date and was given an opportunity to address the court
court. on any aspect of the application despite the non-filing of
grounds of opposition and/or replying affidavit. Coun-
He filed suit on 8.8.96 against the Commissioner of Lands sel declined the opportunity however and stated that he
(Commissioner) and JIVACO. He also joined the Mom- did not wish to make any submissions in respect of the
basa Municipal Council (The Council) which is the Lo- application. He left the court room. That left Mr. Asige
cal Authority within whose jurisdiction the Kisauni/Nyali for Niaz and Mr. Gikandi for Jivaco to battle it out.
Road falls and holds the Road together with the Road
reserve thereto in trust for the Public, and must have As I perceive it, Mr. Asige’s case is two-proned: that Niaz
known about the alienation of the portion of land. He has private rights to protect and, intertwined with these
prays for judgment and five orders in that suit: rights are also public rights which ought to be protected.
(i) A declaration that the creation and grant of alloca- The private rights of Niaz arose because after the acqui-
tion by the Commissioner and/or the Council of Title sition of the land and the construction of the road, Niaz
No. LR No. 9665 Sec.I MN to Jivaco in 1995 is became a frontager to that road and acquired absolute
null and void. easement rights over the new road. He has a right to
remain such frontager which has its advantages because
(ii) A declaration that the lease of 99 years granted to the portion of his land was not acquired for any other
Jivaco by the Commissioner and/or the Council of purpose but for construction of a road. He ought to have
Title No. 9665 Sec.I MN is null and void. direct access to the road through this portion but he will
not be able to do so since a Title has been created be-
(iii) An order that Jivaco do deliver up the Title No. 9665 tween him and the road and there is no way of knowing
to the Commissioner for cancellation. what kind of construction or development will be put up
there. This may well affect the value of his property.
(iv) An order that the land comprised in Title No. 9665 Hence the need to protect these rights, the infringement
Sec.I MN do remain a road or road reserve. of which will lead to irreparable loss and damage. Inter-
twined with these rights is a public right which Niaz as a
(v) An injunction to permanently restrain the defend- member of the public and in his own right as a user of
ants jointly and/or severally from selling or devel- the road feels he ought to protect. In Mr. Asige’s sub-
oping the said parcel by themselves or their agents mission, it is clear that the portion now the subject mat-
or in any other manner from dealing with the land ter of the suit was acquired solely for construction of the
No. 9665 Sec.I MN.” new Kisauni/Nyali access road. If the entire stretch of
acquired land was not utilised, then any remaining por-
Contemporaneously with the main suit, Niaz filed a tions still comprised the said Road and its Road - re-
Chamber Summons under Order 39 rule 1, 3 & 9 of the serve. He cited the Public Roads and Roads of Access
Civil Procedure Rules and Section 3A of the Act seek- Act Cap 399 Section 2(c)
ing a temporary order
“Public Road means
“That Jivaco by themselves or by their agents or serv-
ants or any person whatsoever acting on their behalf (a) ....
be restrained from developing, erecting structure or
structures, selling, assigning or transferring or in any (b) ....
other manner whatsoever dealing in or with or inter-
fering, wasting or alienating plot No. LR No. 9665
Sec.I MN until the hearing and final determination (c) all roads and thorough fares hereafter reserved for
of this suit or further orders from the court”. public use.
This is the application that was argued before me on and also the Streets Adoption Act Cap 406 Section 3(1)
19.9.96 and 20.9.96. where ‘street’ means inter alia
I was satisfied on the outset that the Commissioner was “... a highway ... road ... footway ... passage or any
served with the plaint, summons to enter appearance, lands reserved therefor, within the area of Local Au-
chamber summons and affidavit but never bothered to thority, used or intended to be used as a means of
access to two or more premises or areas of land in
291
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
different occupation whether the public have a right The property having vested in the Government therefore
of way over it or not ....” and there being no challenge to the compulsory acquisi-
tion since 1979, there cannot be any challenge now be-
On these two premises, submitted Mr. Asige, the area cause the land subsequently fell to be dealt with by the
acquired became a Public road or street. Under the Lo- Government under the Government Lands Act. This
cal Government Act Cap 265, such areas are under the means that after utilising the acquired portion of 0.36
general control of the local Authority within which they Acres the remaining portion of 0.14 Acres became “un-
are situated, in this case. The Mombasa Municipal Coun- alienated Government Land” and the Government could
cil. Under Section 182(1) of the Act the Council exer- deal with it in any way it wished under Section 3 of the
cises trusteeship rights and has no right of alienation in Act. The remaining portion in Mr. Gikandi’s submis-
breach of that trust. It is the breach of this trust that is sion was not a road or a road reserve as alleged. It has
intended to be contested in the main suit. It will also be now become a Registered parcel of land under the Reg-
contended that the Commissioner of Lands was part of istration of Titles Act Cap 281 which makes it unchal-
this larger scheme of alienating road reserves by abus- lengeable save for fraud or misrepresentation. Jivaco
ing the provisions of the Land Acquisition Act by com- was not part of this fraud or misrepresentation if any is
pulsorily acquiring land for a specific purpose only to found to exist.
turn round and dish it out to individuals. It will there-
fore be contended that due to this abuse of the law the In his further submission, the Public Roads and Roads
allocations made to Jivaco are a nullity ab initio and ought of Access Act and the Streets Adoption Act have no ap-
to be so declared by the court. This abuse is even more plication. The Acts are merely for creating Road Boards
glaring considering that the new plot created traverses and providing how one can apply to have a road or street
the new tarmac road and according to a survey map an- registered or adopted. There is no evidence to show that
nexed to the application two of the beacons stand on the the disputed portion was registered by the Council as a
built-up tarmac road. It would mean that in exercise of street or road and therefore there is no prima facie proof
their new rights Jivaco can build on top of the tarmac that it fell on a road reserve.
road if they wanted to. In Mr. Asige’s submission Niaz
has fulfilled all the tests set out in the Giella Vs Cassman As for the issue of damages Mr. Gikandi says there is an
Brown case including the balance of convenience even averment in the Affidavit of his client that Niaz had ap-
if it came to considering the matter on that basis. This is proached Jivaco for sale of the land to him and he must
because no development has commenced yet and it would therefore have his own interest and not the Public’s in
be more convenient to prevent its commencement than filing this suit. That is why he delayed in filing the suit
to wait until the finalisation of the case when it may be- since he found out the new Registration in June 1996
come necessary to demolish any construction. He invited until September 1996 when the suit was filed. Niaz’s
the court to follow the legal reasoning adopted in NBI rights of access have also not been interfered with since
HCCC 688/96, BETH KALIA & Others -Vs- ROBERT there are other approaches to his property. He cannot
MUTISO LELI (UR) where it was recently held by my suffer irreparable loss.
brother Mbito J., on the facts of that case, that the Presi-
dent through the Commissioner of Lands could not law- On the allegation that Jivaco’s Title or part of it stands
fully alienate suit premises which had been previously on the tarmaced road, Mr. Gikandi submitted that it was
alienated and had only been surrendered to the Commis- not for Jivaco to ascertain where the beacons were. If
sioner to hold in trust for the residents of the area. any mistakes were made in placing them then these may
be explained as human errors. Jivaco does not intend to
Mr. Gikandi relied on the grounds of opposition filed on build on the road. Considering therefore that Jivaco have
29.8.96 and basically contended that the suit did not es- a Title and now wish to commence development, they
tablish any prima facie case, was frivolous, vexatious and should not be stopped from doing so. Finally Mr. Gikandi
an abuse of the court process; the plaintiff can be com- submitted that Niaz has not even given an undertaking
pensated in damages and that the balance of convenience as to damages if the injunction is ultimately found to
is not in favour of granting the injunction. He also relied have been wrongly issued.
on the affidavit sworn by Mehul Shah for Jivaco and sub-
mitted the Jivaco were bona fide purchasers or allottees On this Mr. Asige submitted that it was for the court to
of the property without notice of any encumbrance. He consider whether to require, and if so, the nature of an
further submitted that after the compulsory Acquisition undertaking to be given in the event of an injunction be-
as provided for under the Land Acquisition Act the land ing granted and confirmed that his client was ready to
vested in the Government free from encumbrances. adhere to any terms set by the court in that respect.
“Vesting” according to the definition provided by Strouds
Judicial Dictionary which Mr. Gikandi cited The parameters within which I must consider this appli-
cation are clearly set in the Giella Case cited above. I
“Having a right to immediate or future possession must be satisfied that the applicant has a prima facie case
and enjoyment”.
292
NIAZ MOHAMED JAN MOHAMMED V. COMMISSIONER OF LANDS & OTHERS
with a probability of success and that he would suffer does not mean well for its citizens, to compulsorily ac-
irreparable injury which is uncompensable in damages; quire whole sections of a city or town or other devel-
and if I am in doubt then I have to consider the balance oped property on the pretext of public good, compensate
of convenience. In considering the first test I must also the owners of the property acquired with taxpayers’
bear in mind that at this stage I have not heard any evi- money and then turn round and dish out those properties
dence on the case and that I am relying on Affidavit evi- to favoured citizens of its choice or the enemies of the
dence. The matter of conclusive proof shall await evi- state: Parliament could not have intended such prepos-
dence at the main hearing. terous consequences.
I have considered the submissions made on both sides I am not persuaded by the argument that upon compul-
and it seems to me that if it can be proved that the dis- sory acquisition of land and the consequent vesting of
puted portion of land was part of land compulsorily and that land in the Government, then the land falls to be
specifically acquired for the purpose of construction of used by the Government in any manner it desires. There
a Road and still remains as a road reserve, then the ap- is plainly no such Carte Blance intended in the provi-
plicant would be entitled to say that his rights of access sions of the law cited above. The land must be used,
to the road through this portion are being interfered with. subsequent to the acquisition, for a lawful purpose, and
as I see it, the only lawful purpose is the one for which it
There is no right of compulsory acquisition of land by was acquired.
the Government for purposes other than those provided
for in the Constitution of Kenya under Section 75: I am persuaded that the land in issue was acquired for a
specific purpose which is consonant with the Constitu-
“No property of any description shall be compulso- tion and the Land Acquisition Act, namely for the con-
rily taken possession of, and no interest in or right struction of a Public Road. It matters not that the entire
over property of any description shall be compulso- portion acquired was not used for that purpose.
rily acquired except where the following conditions Unutilised portions in my view would remain as road
are satisfied:-
reserves. And if it was the case that it was found unnec-
(a) the taking of possession or acquisition is necessary essary after all to have acquired the portions for the ex-
in the interests of defence, public safety, public or- pressed purpose, does equity not require that the por-
der, public morality, public health, town and coun- tions be surrendered back to the person or persons from
try planning or the development or utilization of whom the land was compulsorily acquired? The law it-
property so as to promote the public benefit, and self in Section 23 of the Land Acquisition Act appears to
imply such equity although it relates to withdrawal of
(b) the necessity therefor is such as to afford reason- acquisition before possession is taken. Perhaps it is a
able justification for the causing of hardship that question that may be answered when the matter comes
may result to any person having an interest in or up for full hearing.
right over the property.
I am persuaded by the argument that since the acquisi-
That spirit is carried forward in the Land Acquisition tion was done for the purpose of making a Public Road,
Act itself in Section 6. the road thus made remained a Public Road or street and
vested in the Local Authority, The Municipal Council of
“6(1) where the Minister is satisfied that any land is re- Mombasa, to hold in trust for the public in accordance
quired for the purpose of public body and that - with the law. Needless to say this included the portion
usually utilised for the tarmaced road and the remaining
(a) the acquisition of the land is necessary in the inter- portions which form part of the road reserve.
ests of defence, public safety, public order, public
morality, public health, town and country planning Finally I am persuaded by the argument that as such trust
or the development or utilization of any property in land, neither the Local Authority nor the Government
such manner as to promote the public benefit; and could alienate the land under the Government Lands Act.
(b) the necessity therefor is such as to afford reason- On the above premises, the plaintiff/applicant was enti-
able justification for the causing of any hardship tled to assume that the unutilised portion would remain
that may result to any person interested in the land a road reserve and he would continue to enjoy all the
and so certifies in writing to the Commissioner, he rights and privileges of a frontager to the road and enjoy
may in writing direct the Commissioner to acquire the resultant easement of direct access to that road. I
the land compulsorily under this part.” find on a prima facie basis that the plaintiff had such
right and ought to be protected until this case is deter-
If it were not so, and taken to its logical conclusion, a mined. It i no answer to the prayer sought, that the ap-
loophole would be created for any Government which plicant may be compensated in damages. No amount of
293
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
money can compensate the infringement of such right or I would apply the same principles here in granting the
atone for transgressions against the law, if this turns out orders sought even on this limb of the application.
to have been the case.These considerations alone would
entitle the applicant to the grant of the orders sought. I am satisfied that the first two tests in Giella -Vs-
Cassman Brown case have been satisfied and I need not
But objections were raised on the grounds that the plain- therefore consider the balance of convenience. If I was
tiff has no locus standi to protect the public rights he to consider it, I would nevertheless hold in favour of the
purports to in alleging that a public road was unlawfully applicant. No evidence has been tendered or submis-
alienated. No authority was cited for this proposition. sion made that any development of the portion in dis-
But I suppose allusion was being made to Section 61 of pute has commenced. It would obviate heavier losses if
the Civil Procedure Act where in cases of Public Nui- the injunction was granted at this stage rather than wait-
sance, it is only the Attorney General or two or more ing until the end of the case and after considerable ex-
persons having the consent in writing of the Attorney pense has been incurred to order a demolition. Such
General” who may institute a suit though no special dam- damage as may be suffered by the Respondents if the
age has been caused, for a declaration and injunction or injunction ultimately turns out to have been erroneous
other suitable reliefs. in law and fact can be sufficiently covered by an order,
which I now make, that the applicant do provide and file
“A Public or common Nuisance is an act which inter- within the next SEVEN days, an undertaking that he will
feres with the enjoyment of a right which all members bear such damages as may be assessed by the court, con-
of the community are entitled to, such as the right to sequent upon the grant of this injunction.
fresh air, to travel on the highways etc. The remedy for
a public nuisance .... is by indictment information or in- Subject to this qualification the application is granted
junction at the suit of the Attorney General” - see Con- with costs.
cise Law Dictionary -Osborn.
Dated at Mombasa this 9th day of October 1996.
What if the Attorney General is the cause of the nui-
sance? P.N. Waki
JUDGE
As I said in this courts case HCCC 1/96 BABU OMAR 9.10.96
& OTHERS -Vs- EDWARD MWARANIA & AN-
OTHER (U.R.)
9/10/96
“There is nothing in the statutes relating to Local Au-
thorities to exclude the courts ordinary jurisdiction Coram: Waki, J.
to restrain Ultra Vires acts or nuisance or to prevent C/C - Mutua
breaches of trust. No authority has been cited to me Asige for plaintiff/applicant
to the contrary and I am not aware of one ....... The
Gikandi for defendant/respondent
applicants are members of the public. They reside
and pay their rates to the Mombasa Municipal Coun- Ruling delivered, signed and dated in open court.
cil. They would be entitled to vote here. And they
have a right to question the propriety or otherwise of
the dealings by the Council of the Public land which P.N. Waki
the Council holds in trust for the public. They may JUDGE
well be right that the Council is alienating a Public 9.10.96
Road Reserve, contrary to the law”.
294
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 2959 OF 1996
ABDIKADIR SHEIKH HASSAN & 4 OTHERS — PLAINTIFF
v.
KENYA WILDLIFE SERVICE — DEFENDANT
RULING hereby entitle the respondent to conserve the wild ani-
mals in their natural state. It does not entitle it to
By this application filed on 19th August, 1996, the plain- translocate them. It would therefore appear that the re-
tiffs seek orders restraining the defendant from remov- spondent would be acting outside its powers if it were to
ing, dislocating and/or distreslocating or in any other way move any animals or plants away from their natural habi-
moving a rare and endangered animal called “the Hirola” tat without the express consent of those entitled to the
from its natural habitat in Arawale to the Tsavo National fruits of the earth on which the animals live. Consequently
Park or any other place or destination on the grounds in this court’s view, as the respondent is trying to deplete
inter alia that it is a gift to the people of the area and through translocation the applicants heritage of fruits of
should be left there. The defendant however contends the land of which they are entitled to through the County
that the injunction should not be granted and/or should Council trust, they are entitled to maintain this suit and
be lifted as inter alia the application was seeking to cur- have shown a prima facie case with a likelihood of suc-
tail the respondent from carrying out its express statu- cess.
tory mandate.
On injury and/or balance of convenience, I need not re-
The principles on which the court acts in such applica- ally be labour the point. If the animals are removed to a
tions are now well settled. According to the case of Giella new habitat which they are not used to, it is not known if
vs. Cassman Brown and Co. Ltd. [1973] EA 358, in deal- they would survive so as to be returned to their natural
ing with such applications, first the applicant should show habitat if the case is successful. On the other hand if they
prima facie case with a likelihood of success. Secondly, are conserved at their natural habitat until the suit is heard,
it should be shown that the applicant is likely to suffer they would still be available for translocation to the pro-
an injury which cannot be adequately compensated by posed new habitat if it is found that the case is miscon-
damages if the injunction is not granted. Finally that if ceived.
there is some doubt, the court should act on balance of
convenience. In view of the above findings, I am satisfied that the ap-
plicants have made out a case for grant of an injunction.
On the first principle on which the court acts, it is ob- I therefore hereby grant prayers 4 and 5 of the chamber
served that according to common law and/or customary summons filed herein on 19th August, 1996 in so far as
law of the inhabitants of this country, those entitled to they relate to translocation of the Hirolas from their natu-
the use of the land are also entitled to the fruits thereof ral habitat of Arawale nature reserve of Garissa District.
which include the fauna and flora unless this has been The costs hereof shall be in the cause. Orders accord-
negated by law. A perusal of the constitution, which is ingly.
the supreme law of this country, only shows that miner-
als and oils are excluded from the ownership of those Dated at Nairobi this 29th day of August, 1996.
entitled to use of any given land. See Section 115(1) of
the constitution. A perusal of the Wildlife (Conservation
and Management) Act as amended by Act 16 of 1989 G. P. MBITO
shows that the defendant by virtue of S. 3A and in par- JUDGE
ticular 3A (d) (e) (f) when read together or separately
295
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, TUNOI & PALL, JJ.A.)
CIVIL APPEAL NO. 252 OF 1996
BETWEEN
THE COMMISSIONER OF LANDS
THE MINISTER FOR LANDS AND SETTLEMENT — APPELLANTS
AND
COASTAL AQUACULTURE LIMITED — RESPONDENT
(An appeal from the Judgment of the High Court of Kenya at Nairobi (Justice
Ringera) dated 21st March, 1996
in
MOMBASA H.C.MISC. APPLL. NO.55 of 1994)
JUDGEMENT OF AKIWUMI, J.A. for the hearing of the inquiry did not comply with section
9 (1) of the Act, but also that Gazette Notice No.3590
This appeal is from the judgment of Ringera, J. in which, giving notice of the intention to compulsorily acquire
he granted an order prohibiting the Commissioner of the respondent’s land, was, having regard to section 6
Lands from continuing with an inquiry into compensation (1) of the Act, defective in that it did not state either the
to be paid in respect of land acquired under the Land public body for which the acquisition was being made,
Acquisition Act. or the public purpose to be served by the acquisition.
Mr. Ghalia therefore, requested the Commissioner to
The background to all this is as follows. In 1993, the publish fresh Gazette Notices which satisfied the
Commissioner of Lands whom I shall henceforth refer provisions of the Act. The Commissioner, however,
to as “the Commissioner”, caused to be published Gazette merely published a CORRIGENDUM Gazette Notice
Notice No.3590 dated 22nd July, 1993, under the heading No.3982 dated 9th August, 1993, giving a new date for
“Intention to Acquire Land”, that in pursuance of section the hearing of the inquiry. The Commissioner did nothing
6(2) of the Land Acquisition Act which I shall henceforth, about the complaint made that Gazette notice No.3590
refer to as “the Act”, he was giving notice that the was defective. He did not even reply to Mr. Ghalia’s letter
Government intended to acquire land which belonged to of 30th July, 1993. On 12th, 18th and 30th August, 1993,
Coastal Aquaculture Ltd, the respondent herein, “for Tana Mr. Ghalia wrote to the Commissioner with copies to
River Delta Wetlands”. The Commissioner also caused the Attorney General, inter alia, complaining about the
to be published another Gazette Notice No.3591 of the illegality of the first two notices. In the last two letters,
same date, giving notice of the date when an inquiry he threatened to sue if fresh notices which complied with
would be held to hear claims to compensation by those the Act were not gazetted. The Commissioner, as was
affected by the acquisition of the same land, which was now beginning to be his custom, did not only, ignore
the respondent. But before the inquiry could begin, the these letters, but would also not condescend to reply to
respondent through its advocate, Mr. Ghalia, in his letter them. Not surprisingly, Mr. Ghalia applied to the High
of 30th July, 1993, to the Commissioner, and copied to Court in Mombasa for leave to apply for an order of
the Attorney General, charged that not only, was Gazette prohibition to restrain the Commissioner from
Notice No.3591 defective because the date stated therein commencing and or continuing with the inquiry into
296
COMMISSIONER OF LANDS V COASTAL AQUACULTURE LTD
claims to compensation under the Act as notified in the Settlement, who appeared to head a team of four Valuers,
three Gazette Notices, inter alia, on the ground that the and who described himself in that record as Chairman of
Gazette Notices Nos. 3590, 3591 and 3982 above the Inquiry, on 30th December, 1993. According to the
mentioned, were defective as they failed to set out the record of proceedings, Mr. Mwaniki first explained to
public body for which the respondent’s land was being Mr. Ghalia that the respondent’s land was being acquired
compulsorily acquired and the public purpose for which in accordance with section 6 of the Act. The first sign of
the acquisition was intended. trouble then surfaced after Mr. Mwaniki had refused to
allow the proceedings to be tape recorded. The relevant
Good sense seems at last, to have prevailed, for by a parts of the record of proceedings are as follows:
consent letter dated 22nd September, 1993, signed by
Mr. Ghalia for the respondent and by the then Deputy “Mr. Ghalia
Chief Litigation Counsel of the Attorney General’s
Chambers for the Commissioner, and addressed to the Raised a preliminary matter which he claimed to be
Registrar of the High Court in Mombasa, and filed in important (underlining supplied). Was the
that court on 23rd September, 1993, it was agreed that Commissioner of Lands to undertake the Inquiry?
the intended inquiry be discontinued forthwith; that the I showed Mr. Ghalia and his clients the two letters
Commissioner regazette the compulsory acquisition from the Hon. Minister.
notices by “fresh valid Legal Notices issued and served
in accordance with law”, and which can only mean that - one directing the Commissioner of Lands to acquire
at least, the Commissioner had conceded that the attacks the land.
on the legal validity of the Gazette Notices Nos.3590,
3591 and 3982 were valid; and this also speaks volumes, - the other authorizing the four valuers to conduct
that the Commissioner should pay to the respondent the Inquiry.”.
Shs.5,000/= by way of costs. A question which I would
like to pose at this stage is whether, if Gazette Notices So far so good, for under section 6(1) of the Act, the
under section 6 are valid, an inquiry thereunder can be Minister after certifying to the Commissioner that a given
discontinued or whether this can only be done where the land is required for the purpose of a public body and that
Notices are invalid? Section 23(1) of the Act empowers it is for the public good and was for those reasons
the Minister at any time before possession is taken of justified, may then in writing direct the Commissioner
any land compulsorily “acquired under this Act”, to to acquire the land compulsorily. Secondly, although sub-
revoke his direction to the Commissioner to acquire the sections (3) to (5) of section 9 of the Act clearly vest in
land. But apart from this, I see nothing in the Act whereby, the Commissioner the power to hold an Inquiry, the word
an inquiry which can only be as to claims to “Commissioner” is so defined under section 2 of the Act
compensation, can be prematurely brought to an end, to include “any person authorized by the Minister in
except where it is for instance, based on an invalid notice. writing in any particular case to exercise the powers
It is, however, important to note now that section 23(1) conferred on the Commissioner by this Act”. Since the
of the Act also illustrates that acquisition takes place upon written authority of the Minister was not made part of
the Minister’s direction to the Commissioner and no the record of proceedings of the Inquiry or produced in
further prescribed steps for this purpose are laid down to the proceedings in the superior court, one may not assume
be taken by the Commissioner. In other words, acquisition particularly, because of further excerpts from the record
takes place upon the Commissioner receiving the of proceedings of the Inquiry which appear hereinafter,
Minister’s directions to acquire. I shall refer to this again that it was in order so that Mr. Mwaniki and the three
later in this judgment. other valuers can be said to have been properly authorized
by the Minister to exercise the powers of the
However, it seems that good sense did not prevail for Commissioner in holding the Inquiry. Apart from the fact
long, for some forty three days after the filing of the that appointing four persons to hold such an Inquiry
consent letter, the Commissioner caused to be published would present its own problems, the one that immediately
in a SPECIAL ISSUE of the Official Gazette, Gazette arose whether Mr. Mwaniki had been authorized by the
Notices No.s 5689 and 5690. The first one which was Minister not merely to be a member of the team to carry
headed “INTENTION TO ACQUIRE LAND”, was out the Inquiry, but whether he had been authorized by
exactly, word for word as that of Gazette Notice No. 3590 the Minister to be the Chairman of the Inquiry.
dated 22nd July, 1993. It simply again stated that the
Commissioner IN PURSUANCE of section 6(2) of the The following excerpts from Mr. Mwaniki’s very own
Land Acquisition Act, was giving notice that the record of proceedings illustrate the dilemma that he found
Government intended to acquire the respondent’s land himself in concerning his assumed role as Chairman of
“for Tana River Delta Wetlands”. The inquiry then began, the Inquiry and indeed, concerning the basic question of
according to the record of proceedings made one J.B.K. who was undertaking the Inquiry, after Mr. Ghalia had
Mwaniki, Chief Valuer of the Ministry of Lands and raised his preliminary point already referred to:
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“At this point I advised Mr. Ghalia that the February, 1994, 1st March, 1994 and 3rd March, 1994.
Commissioner of Lands was chairing and conducting On the last day, Mr. Mwaniki was served with ex parte
the Inquiry. (underlining supplied) orders obtained by the respondent granting leave to
Mr. Ghalia was satisfied with the Hon. Minister’s prohibit, by way of judicial review, the continuation of
letters. the Inquiry and interim stay of the proceedings of the
Inquiry. As already noted, the questioning of the validity
Mr. Ghalia asked if the Attorney General was going of the Inquiry occurred at its inception. It is also true
to be represented. that Mr. Mwaniki was served with the ex parte orders
after the Inquiry had been on for some days, but that
I informed Mr. Ghalia that the Commissioner of makes no difference to the validity of Inquiry if it was
Lands was chairing the Inquiry (underlining supplied) invalid right from the beginning. In other words, the
and NOT the Attorney General. Mr. Ghalia gave the respondent’s continued participation for four days in the
impression that he had been talking to Attorney Inquiry even after Mr. Mwaniki as already shown, had
General.
disclaimed his jurisdiction to be the Chairman of the
At this point the Chairman was called by the Inquiry or to conduct it, does not amount to a waiver or
Commissioner of Lands. estoppel that can legitimate action which is ultra vires.
To quote from Wade’s Administrative Law (4th Edition)
When the Chairman resumed he informed those p.222:
assembled that there were new developments. I
informed Mr. Ghalia that the Attorney General had “... The primary rule is that no waiver of rights and
instructed that the Inquiry be adjourned to a later date. no consent or private bargain can give a public
(underlining supplied) Reasons - Mr. Ole Keiwua who authority more power that [sic] it legitimately possess.
was to attend was due to unforeseen official duties Once again, the principle of ultra vires must prevail
engaged elsewhere. when it comes into conflict with the ordinary rule of
law.”.
Mr. Ghalia insisted to know if the Inquiry was being
adjourned because of the Attorney General’s absence. The non compliance of the relevant requirement of the
Act in the light of the record of proceedings as regards
I informed him that since the Attorney General has the jurisdiction of Mr. Mwaniki and his fellow valuers,
instructed we adjourn, we have to.” (underlining to conduct the Inquiry which was raised on the very first
supplied). day of the Inquiry was one of the grounds in support of
From Mr. Mwaniki’s own lips as it were, which is the the amended Notice of Motion for judicial review which
only cogent evidence on the issue, it is clear and came before Ringera, J. for hearing on 18th January,
undisputed that he was not the Chairman of the Inquiry 1996. It was put this way:
even though he described himself as such. And if as Mr.
Mwaniki stated, that “the Commissioner of Lands was “It was only upon answering to the summons under
chairing and conducting the Inquiry”, then again, on the Gazette Notice Number 5690 of 1993 that the
face of the record, Mr. Mwaniki has shown that he applicants realized that the purported inquiry under
himself, and for that matter, his other three valuer the chairmanship of Mr. Mwaniki was irregular as -
colleagues, had no jurisdiction to begin and to hear the (i) ...
inquiry as they did and that what they did was null and
void. And for that matter, it does not matter that Mr. (ii) ...
Ghalia had said that he was satisfied with the Minister’s
letter which was not, and has not been, produced. It is (iii) the inquiry was being conducted without proper
only when the Commissioner is not carrying out the jurisdiction and irrationally.”
Inquiry himself, that others may be appointed by the
Minister to do so. Mr. Mwaniki himself has set at naught As I have already stated, the lack of jurisdiction on the
the Minister’s authority if that is what it was intended to part of Mr. Mwaniki and his team to conduct the Inquiry,
be, and he and his team of valuers should not have started which is based on Mr. Mwaniki’s own disclaimer, is there
and gone on with the Inquiry. for all to see on the face of Mr. Mwaniki’s own certified
record of proceedings of the Inquiry.
The foregoing excepts from Mr. Mwaniki’s record of
proceedings also show the lack of control that Mr. In Rex v Croke (1774) 1 Cowp.26, it was held that where:
Mwaniki had over the proceedings. He was taking
instructions which he should not have, if he were really “... by statute, a special authority is delegated to
the Chairman of the Inquiry, from the Commissioner and particular persons, affecting the property of
from the Attorney General. Anyway, the Inquiry which individuals, it must be strictly pursued; and appear
had no basis for the reasons I have already given, went to be so on the face of their proceedings”.
on for some four days, on 30th December, 1993, 28th Applying the following dictum of Lord Mansfield in that
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case to the present one: land, to be published in the Gazette. But a notice does
not quite reflect what the actual position is. It gives the
“This is a special authority delegated by the Act of wrong impression which is more in line with section 3
Parliament to particular persons to take away a man’s of the Act whereby, if the Minister is satisfied that the
property and estate against his will; therefore it will need is likely to arise for the acquisition of some
be strictly pursued, and must appear to be so upon particular land under section 6 of the Act, the
the face of the order.”
Commissioner may cause notice thereof to be published
The analogy that can be drawn is this. In Kenya where in the Gazette, that the Government only intends to
the statutory power to compulsorily acquire a person’s acquire the land. The notice published under section 6(2)
land against his will is first derived from the carefully of the Act, does not reflect, as would appear to be
worded provisions of the Constitution itself; where land supported by the Minister’s certificate and written
is a most sensitive issue; and where in effect, the land in direction to the Commissioner, that the land has, to all
question has already been compulsorily acquired, though intents and purposes, already been acquired. Apart from
not taken possession of, by the time the interested party anything else, the subsequent sections of the Act show
is notified so as to make his claim for compensation, that all that then remains to be done after the publication
there is all the more reason to ensure that all procedures of the notice of intention to acquire land, only concerned
related to compulsory acquisition must not only be strictly the assessment and payment of compensation for the
pursued, but must also appear to be so on the face of the compulsory acquisition; the revocation of a directive to
Inquiry. acquire land before actual possession is taken; the taking
possession of such land; and the right of appeal to the
The other aspect of the lack of jurisdiction to hold the High Court to challenge the amount of compensation
Inquiry and which was more substantially argued before awarded. It was further submitted on behalf of the
Ringera, J., was whether the Gazette Notice No. 5689 of respondent, that the drastic and exceptional powers
4th November, 1993, which gave notice of the granted to the Commissioner on the say so of the Minister,
Government’s intention to compulsorily acquire the and I may add, a process in which the person to be
respondent’s land, was sufficient to grant jurisdiction for affected has absolutely no part to play, are such that at
the holding of the Inquiry. least, when it comes to the process of claim to
compensation, the affected party should be informed in
It was argued on behalf of the respondent that the Gazette the notice which the Commissioner caused to be
Notice was invalid because it did not set out the conditions published of the Government’s intention to acquire land,
which must be satisfied before the respondent’s land of the reasons and conditions which justify the
could be compulsorily acquired as laid down in section compulsory acquisition such as the public body for which
75 of the Constitution read together with section 6 of the the land had been acquired and the public purpose for
Act, namely, that the acquisition was for a public body the acquisition.
for any of the public interests or benefits enumerated in
section 75(1)(a) of the Constitution, and that this justified On behalf of the Commissioner, it was submitted that
the hardship that the compulsory acquisition would cause even though section 6(1) of the Act lays down the reasons
the respondent. Section 75(1)(c) of the Constitution for and conditions which must first be satisfied before
which provided for the promulgation of detailed legal land is compulsorily acquired, section 6(2) of the Act
provisions for the implementation of the constitutional which only provides that the Commissioner shall, upon
provisions, namely, the compulsory acquisition of receiving the Minister’s direction to acquire land, cause
property, claim for compensation and matters related to be published in the Gazette a notice that “the
thereto, led to the enactment of the Act. Section 6 of the Government intends to acquire the land”, does not require
Act which is headed “Acquisition of Land” is the one such notice to contain any other information such as the
that is relevant. Its marginal note is “Notice of name of the public body for which the land had been
Acquisition”. This section has been fully set out in the acquired and the public purpose which the acquisition
Judgment of Ringera, J. and I will only summarise it was intended to promote.
here. It is firstly, according to section 6(1) of the Act,
that where the Minister is satisfied that land is required After hearing arguments Ringera, J. concluded in the
for a public body, that this is necessary for a stated public following excerpt from his judgment as regards the
purpose and that this justifies the hardship that a validity of General Notices Nos.5689 and 5690 and which
compulsory acquisition of the land will entail, and has deserves to be quoted in extenso as follows:-
so certified all this in writing to the Commissioner, the
Minister may then direct the Commissioner in writing to “As regards the adequacy and validity of the notice
compulsorily acquire the land. Secondly, and according published under section 6(2) I have come to the
to section 6(2) of the Act, after the Commissioner has judgment that notice should reflect the Minister’s
received the Minister’s direction, he shall cause a notice certificate to the Commissioner under section 6(1),
and must accordingly include the identity of the
to the effect that the Government intends to acquire the
public body for whom the land is acquired and the
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public interest in respect of which it is acquired. It is Commissioner, it is more than desirable indeed,
only when a notice contains such information that a mandatory, that the respondent be given a fair chance
person affected thereby can fairly be expected to seize and opportunity of challenging the decision and actions
his right to challenge the legality of the acquisition. of the Minister and the Commissioner, by furnishing the
That is because the test of the legality of the
respondent in the notice of intention to acquire and which
acquisition is whether the land is required for a public
body for a public benefit and such purpose is so notice, as I have noted, is misleading in nature, not only,
necessary that it justifies hardship to the owner. Those with the information that the Commissioner had received
details must be contained in the notice itself for the the Minister’s direction to acquire the land but also, of
prima facie validity of the acquisition must be judged the public body for which the land had been acquired,
on the content of the notice. The test must be satisfied the public purpose therefor, and that all this was justified
at the outset and not with the aid of subsequent under the given circumstances. This is particularly so
evidence. I do not understand Re KISIMA (supra) to where it is the notice of the compulsory acquisition which
hold that information subsequently gleaned from for the first time, informs the affected party of what had
material before the court can cure the defects apparent
happened to his land and also sets in motion the claim to
on the face of the notice. I understand the case to
hold that failure to specify the public body for whom compensation process. It is also not sufficient, indeed,
the land is acquired and the purpose of the acquisition well nigh uncandid, when the evidence at the Inquiry
are the defects which persuaded the court that the showed that the land had been acquired for the Tana and
applicant therein had established a prima facie case Athi Rivers Development Authority, a statutory body
that the Commissioner of Lands lacked jurisdiction corporate created by section 3 of its Act with perpetual
to proceed with compulsory acquisition. The learned succession and a common seal and capable in its
judge also made the additional observation that if the corporate name of suing and being sued, acquiring
affidavit evidence before him was to be accepted the property and borrowing and lending money in its
persons for whose benefit the land was intended to
corporate name etc, to say that the public body for which
be acquired were not a public body. In the result, I
find and hold that Gazette notice number 5689 of 4th the land had been acquired had been sufficiently
November, 1993 is defective and invalid for the reason identified in the Gazette Notice No.5689 merely because
that it did not identify the public body for whom the it gave notice that “Government intends to acquire the
land was being acquired and the public purpose to be land”. Furthermore, section 8(a) of the Tana and Athi
served by such acquisition. The words “Tana River Rivers Development Authority Act which established the
Delta Wetlands” cannot but be a geographical-cum- Authority, has as one of its functions which distinguishes
ecological description. They are not the name of any it from the Government:
public body or descriptive of the public purpose of
the acquisition. They are accordingly incompetent to
“to advise the Government generally and the
satisfy the requirements of the law. That being the
Ministries set out in the Schedule ... on all matters
position, it follows that Gazette notice number 5690
affecting the development of the Area including the
of 4th November, 1993 notifying interested parties
apportionment of water resources”.
of the holding of an inquiry into claims for
compensation was also invalid. As the jurisdiction of To conclude on this particular issue, “public body” is
the Commissioner of Lands to hold the inquiry was defined in section 2 of the Tana and Athi Rivers
conditional on publication of valid notices of the Development Authority Act to mean:
acquisition and of the inquiry, I must, and do
conclude, that the Commissioner lacked jurisdiction “the Government” or “any authority, board or other
to commence or continue the inquiry under section body which has or performs ... functions of a public
9(3) of the Land Acquisition Act. I am accordingly nature, or which engages or is about to engage in the
inclined to order that prohibition do issue as prayed”. exploitation of natural resources...”.
It is this decision that has prompted the present appeal. It is clear that the Tana and Athi Rivers Development
Authority is such a body with functions of a public nature
The submissions made in this appeal are really the same and it should have been specified as the public body for
that were made before Ringera, J. and I agree entirely which the Government intended to acquire the land. As
with his judgment and only have the following additional Ringera, J. said, applying Re Kisima Farm Ltd (1978)
points to make. KLR 36:
I recall again the dictum of Lord Mansfield in Rex v “The test must be satisfied at the outset and not with
Croke earlier referred to, and would add that where as in the aid of subsequent evidence”.
this appeal, the person affected, namely, the respondent
had absolutely no say in the making of the original In this case, the subsequent evidence has only succeeded
decision by the Minister which was conveyed to the in showing the notice of intention to acquire land to be
Commissioner and the Minister’s written direction to the less than candid.
Commissioner to acquire the land and which merely on
the say so of the Minister, had been so acquired by the As regards the public purpose for which the land had
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been acquired, merely stating in Gazette Notice No.5689 Moreover, if the affidavit of Mr. Powys is to be
that the Government intended to acquire the land “for accepted, the Minister in question informed him that
Tana River Delta Wetlands” and which mischievously the land was “for the members of the Meru tribe”. I
gives the impression that it is a public body, is simply agree with Mr. Couldrey that this would not be a
public body or purpose envisaged by the definition
not good enough. If it is meant to be the public purpose
in the Act. In the circumstances (and leaving aside
for which the land has been acquired, that too, is simply for the moment alleged inaccuracies in the acreage
not good enough. It would even have been sufficient if of the parcel of land ...) this prima facie seems to
the notice in this regard, had only said that the land had constitute an absence of jurisdiction to acquire the
been required “for the development of the Tana River land, and, consequently, an absence of jurisdiction
Delta Wetlands”. A more patriotic purpose would have in the Commissioner of Lands to act in pursuance of
been as the Tana and Athi Rivers Development Authority a direction given in that behalf”.
more wordily put it in its Madaraka Day Congratulatory
Advertisement in the Sunday Standard of 1st June, 1997, I am of the view that Ringera, J. was quite right in
“for promoting environmental conservation for the following and adopting Re Kisima. But he is not the only
sustainable development” of the Tana River Delta Judge who has adopted the reasoning in Re Kisima. A
Wetlands. Or better still, as was contained in the Kenya week after delivering his judgment in Re Kisima, Hancox,
Wildlife Service, Press Release on World Wetlands Day J. had before him a similar application for leave to apply
1997, published in the Sunday Standard of 2nd February, for an order of prohibition in the case of In the Matter of
1997, for “ENSURING A SUSTAINABLE FUTURE an Application by Marania Limited for Leave to apply
FOR WETLANDS AND THE COMMUNITY”. Merely for Orders of Prohibition and Centiorari and In the Matter
stating “for Tana River Delta Wetlands” as Ringera, J. of the Constitution of Kenya and In the Matter of the
observed, “cannot but be a geographical-cum-ecological Land Acquisition Act (Cap 295) Miscellaneous Civil
description”, and which I may add, is neither a public Application No. 68 of 1978 (unreported). In his ruling
body nor a public benefit. with respect to the application for leave to apply for the
order of prohibition, Hancox, J. followed his judgment
I would now like to revert briefly to Re Kisima which in Re Kisima. Two years later, Simpson, J. as he then
was an application for leave to issue an order of was, considered Re Kisima in the case of Reginald
prohibition, and in which it was held that the existence Destro, Donald Destro & Others v Attorney General
of a right of appeal did not constitute a bar to an H.C.C.C. No. 2414 of 1979 (unreported). The matter
application for an order of prohibition. The position has before Simpson, J. concerned the validity of the
been well stated in Constitutional and Administrative Law Minister’s certificate required under section 6(1) of the
by E.C.S. Wade and A.W. Bradley, Tenth Edition p 638 Act in respect of which, he held that there was no error
as follows: on the face of it. His attention had, however, been drawn
to Re Kisima and this is what he had to say about it:
“This supervision does not seek to provide a fresh
decision on the merits but to ensure that the body in “Mr. Dobry said he relied on Hancox, J.’s rulings in
question has observed the limits which are a condition Civil Application 62 of 1978 - Kisima Farms Ltd and
of its power to make binding decisions. According to 68 of 1978 - Marania Ltd., both applications for
a famous dictum in R. v. Nat Bell Liquors, prerogative writs relating to land acquisition. In both
cases the Gazette Notices expressing the
‘That supervision goes to two points: one is the area
Commissioner of Lands’ intention were defective in
of the inferior judgment and the qualifications and
that not only was no public body but also no particular
conditions of its exercise; the other is the observance
purpose was specified. The land in question was in
of the law in the course of its exercise.’’
fact required for resettlement of certain members of
Thus all tribunals and like bodies are subject in the Meru tribe clearly not a public body”.
English law to control by the High Court on
jurisdictional grounds, whether or not there is a In both Re Kisima and Marania the wording of the
statutory right of appeal from their decisions”. Gazette Notices of intention to acquire land namely, Nos.
The reasons for the granting of leave by Hancox, J. as he 3678 of 1977 and 3682 of 1977 respectively, were as
then was, in Re Kisima are in my view, correct as stated follows:-
in his following observations:
“In pursuance of section 6(2) of the Land Acquisition
“I would comment that there appear to me to be Act, 1968, I hereby give notice that the Government
defects in the expression of the Commissioner of intends to acquire the following land for a public
Lands’ intention in the respective Gazette notices. For purpose”.
instance, section 6 requires that the Minister shall be This may have been the previous practice, so what. That
satisfied that the land in question is required for the
which is wrong and contrary to law, should not be
purpose of a public body. No public body and no
particular purpose is specified in Gazette Notice 3678. condoned particularly, as earlier shown, that this had been
conceded by the Commissioner in the letter of consent
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
dated 22nd September, 1993, already referred to. I can added after the legislation had been passed. It could
only add that Ringera, J. was right at the conclusion he not, therefore, at least as regards the earlier legislation,
came to that the order of prohibition sought should be be said that the marginal note played any part in
granted. disclosing the intention of the legislature. The position
in Kenya is very different. Marginal notes always
form part of the bill as presented to Parliament for
The role of marginal notes in legislation deserves a brief enactment. Indeed, there are a number of enactments,
comment. Marginal notes are often found at the side of including the Acts amending the present Constitution
sections in an Act. They purport to summarize the effect of Kenya, in which marginal notes have been the
of the sections, and have sometimes been used as an aid subject of amendment by legislation. Further, a
to construction. Whilst it is true that marginal notes are constitutional document (the Royal Instructions) prior
not part of the Act, some help might be derived from to independence specifically required that a marginal
them to show what the sections to which they relate, are note should appear on each section of a bill as
dealing with. In respect of the whole of section 6 of the presented to the legislature”.
Act, the marginal note is “Notice of acquisition” To the foregoing can be added the authoritative words of
signifying the importance of the notice of acquisition and Garth Thornton who had unrivalled and distinguished
what it should contain which are the conditions for the career in legislative drafting in East Africa. Garth
compulsory acquisition as set out in section 6(1). In the Thornton was Chief Parliamentary Draftsman of
case of Bushell v Hammond (1904) 2KB 563, at 567, Tanzania for many years and was one time, Deputy Legal
Collins M.R. in his leading judgment stated that in order Secretary of the East African Common Services
to understand subsection 4 of the Licensing Act, 1902: Organization. In his latter office he was responsible for
the drafting of East African legislation which were
“... we must look at the whole of the section of which debated by the Central Legislative Assembly of the East
it forms part, and some help will be derived from the African Common Services and which when passed by
side note (though of course it is not part of the statute), that Assembly, had the force of law in the constituent
which shows that the section is dealing with the East African Countries of Kenya, Uganda and Tanzania.
control of parties over the structure of the licensed
He defines “marginal notes” in his book “Legislative
premises”.
Drafting” as follows:
In Stephens v Cuckfield R. D. C. (1960) 2 Q.B. 373, at
383 C.A. at 383, Upjohn L.J. in the judgment of the court, “The object of a marginal note is to give a concise
had this to say about the role of a marginal note: indication of the contents of a section. A reader has
only to glance quickly through the marginal notes in
“While the marginal note to a section cannot control order to understand the framework and the scope of
the language used in the section, it is at least an Act and also to enable him to direct his attention
permissible to approach a consideration of its general quickly to the part of an Act which he is looking for.
purpose and the mischief at which it was aimed with To achieve this object, a marginal note must be terse
the note in mind”. and it must be accurate. It must describe, but it should
In the case of Mugo v R (1966) E.A. 124 at 128 Rudd not attempt to summarize. It should inform the reader
Ag. C.J. in the judgment of the court, first referred to the of the subject of a section. It cannot hope to tell him
what the section says about that subject.
discontinued old English Parliamentary tradition
whereby, bills submitted to parliament were engrossed Like a signpost, a marginal note must be brief and to
without punctuation or marginal notes on the roll but the point, and it must be pointing where it says it is
which nevertheless, had led some English judges to pointing”.
disregard marginal notes when construing sections of an Section 6(1) of the Act lays down the conditions which
Act. He, however, and in a departure from this line of must be fulfilled before land can be compulsorily
thought, then went on to refer to cases including Bushnell acquired and goes on to provide that where these exist,
(supra) where it had been held in England that marginal the Minister upon so certifying to the Commission, can
notes can show what a section was intended to cover, to then direct the Commissioner in writing to acquire the
support the taking into consideration of the marginal note land. Subsection 6(2) then goes on to state that upon
in construing the section of the Evidence Act which was section 75 of the Constitution and section 6(1) of the Act
involved in the appeal then before the court. Newbold, would not have gone to the trouble of publicly
V.P. as he then was, put the position in Kenya more clearly proclaiming the conditions which must exist before the
in the Court of Appeal case of Visram & Karsan v Bhatt Minister directs the Commissioner to compulsorily
(1965) E.A. 789 at 794. He put it this way: acquire the land in question. The modern approach to
the constitution of legislation which supports the view I
“While in Britain the courts will not normally have have just expressed, is to be found in the following
regard to marginal notes for assistance in construing statement of the law which appears in de Smith’s Judicial
the terms of a section, this due to the historical reason Review of Administrative Action, Fourth Edition, by J.
that prior to 1850 marginal notes did not form part of M. Evans p.98:
the bill as presented to Parliament and they were only
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“In the past English courts have tended to favour a that Mr. Mwaniki’s Inquiry lacked jurisdiction for more
formal, linguistic and textual analysis of legislation than one of the reasons set out in the summary. On this
in an attempt to discover the “true meaning” of issue, my attention was also drawn to the judgment of
statutory provisions. The principal shortcomings of Sheridan, J. in the case of Masaka Growers v
this approach are the assumptions that every word
Mumpiwakoma Growers (1968) E.A. 258, in support of
and phrase has a true, single meaning and that, despite
the draftsman’s detailed elaborations, the text is the proposition that the respondent having taken part in
capable of producing an answer to every conceivable the Inquiry for some four days, had waived his right to
factual situation to which the legislation may have to challenge the jurisdiction of the Inquiry. The pertinent
be applied. On the other hand, a “purposive” part of that judgment at 261 et seq., is as follows:
approach, often associated with the mischief rule
enunciated in Heydon’s case, aimed at giving effect “Prohibition lies only for excess or absence of
to the intention of Parliament, unrealistically assumes jurisdiction. It does not lie to correct the course,
that every statutory formula embodies an intention practice or procedure of an inferior tribunal, or a
that can be ascribed to Parliament as a whole, or to wrong decision on the merits of the proceedings: 11
the collective will of a majority of either House or to HALSBURY’S LAWS (3rd Edn.), p.114. I do not
the draftsman. In many cases, of course, the agree with counsel for the applicants’ submission that
approaches converge to produce the same result; but it lies as of right as there is no defect of jurisdiction
in so far as they diverge, courts have recently tended apparent on the face of the proceedings: HALSBURY
to move away from a purely linguistic analysis, and (ibid., p. 115). It is a discretionary remedy and the
have been prepared to blend it with an approach to Court may decline to interpose, by reason of the
interpretation that takes account of the historical conduct of the party. Counsel relies on Farquharson
context of the legislation, and the extent to which a v. Morgan ([1894] 1 Q.B. 552) as authority for the
literal reading would do violence to the legislative proposition that that acquiescence in the exercise of
intention inferred both from other provisions of the jurisdiction by the inferior court is no bar to the issue
measures and from accepted notions of good of prohibition, but in that case there was a total
government and administration”. absence of jurisdiction apparent on the face of the
proceedings, which is not the case here.
I had when dealing earlier with the issue whether Mr.
Mwaniki and his colleagues had jurisdiction to undertake On the other hand, in Mouflet v. Washburn ([1886],
the Inquiry, concluded that in view of Mr. Mwaniki’s 54 L.T. 16). SIR JAMES HANNEN, following ERLE,
answer to the pertinent question put to him by Mr. Ghalia, J., in Jones v James (1850), I L.M. & P. 65), decided
whereby, he had asserted that the Inquiry was being that the defendant, by once appearing before the
county court judge, had waived the right of examining
undertaken by the Commissioner, he Mr. Mwaniki had
into the process by which he had been summoned to
denied that he and his colleagues had any jurisdiction to appear, and that a subsequent application by such
undertake the Inquiry. As is apparent on the face of the defendant for a writ of prohibition to prevent the judge
record, Mr. Mwaniki and Co. had acted ultra vires which of the county court from proceeding in such suit must
is a matter which could not be condoned or corrected be refused. A court may also decline to interpose if
merely because the respondent had taken part in the there is a doubt in fact or law whether the inferior
Inquiry for four days before successfully seeking leave tribunal is exceeding its jurisdiction or acting without
to apply for an order of prohibition in respect of the jurisdiction: 11 HALSBURY’S LAWS (3rd Edn.)
Inquiry and a stay of its proceedings. p.116. I entertain such a doubt”.
I, on my part, have no such hesitation. Moreover, this is
With regard to the scope of the lack of jurisdiction of a a case where from Mr. Mwaniki’s own lips fell his
tribunal which Mr. Mwaniki’s Inquiry was, and which disclaimer of jurisdiction thus making it apparent on the
under the circumstances, applies to it, and which may face of the proceedings, that there was a total lack of
give rise to an order of prohibition, de Smith’s (ibid., jurisdiction. I therefore hold that Masaka Growers is not
p.396) under the heading “Lack of Jurisdiction”, correctly applicable in the present appeal.
summarized the position as follows and which Ringera,
J. adopted: Finally, Ringera, J. Having considered the conduct of
the Commissioner in the saga of the acquisition of the
“Jurisdiction may be lacking if the tribunal is respondent’s land, quite rightly, I think, came to the
improperly constituted; or if essential preliminary following conclusion:-
requirements have been disregarded; or if the
proceedings are otherwise improperly instituted; or “I cannot help feeling in these circumstances, that
if the tribunal is incompetent to adjudicate in respect either the author of the notices was downright
of the parties, the subject matter or the locality in incompetent or he was mischievous”.
question; or if the tribunal, although having
jurisdiction in the first place, proceeds to entertain I am inclined to the view that the latter criticism seems
matters or make orders beyond its competence”. more apt. But what is worse, is that behaviour like that
by a high government official only helps to bring the
Having regard to the foregoing summary, I would say Government that he serves into disrepute.
303
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
In the result, I will dismiss the appeal with costs for the exceeds its legal authority. An inferior tribunal is such
respondent. As Tunoi and Pall, JJ.A. agree, it is so an body of persons and it has a duty to act judicially.
ordered. Such an inferior tribunal exceeds its legal authority when
there is want or excess of jurisdiction or when it acts in
Dated and delivered at Nairobi this 27th day of June, breach of the rules of natural justice. For example, where
1997. the tribunal is without competence by reason of the status
of the parties or the nature of the subject-matter there is
A. M. AKIWUMI a total want of jurisdiction. In such a case prohibition
JUDGE OF APPEAL will issue if there remains something to be done which
the court can prohibit.
In this instance, the Commissioner of Lands (the
JUDGEMENT OF TUNOI, J.A. Commissioner), and the appellant herein, is the tribunal
charged with the legal authority to determine questions
There is no need to repeat the facts which are related in affecting the respondent’s rights as far as compulsory
detail in the judgment of Akiwumi, J.A. which I have acquisition of its land and compensation for it are
had the advantage of reading in draft. I am in complete concerned. He derives his powers from the Land
agreement with his reasoning and conclusions. Acquisition Act (the Act). His jurisdiction being limited
by the Act, he can do only those things which the Act
It is, I think, settled law that an ORDER OF has empowered him to do. His powers are expressed and
PROHIBITION is an order from the High Court directed cannot be implied. The respondent took objection to the
to an inferior tribunal or body which forbids that tribunal Commissioner’s want of jurisdiction immediately, and
or body to continue proceedings therein in excess of its applied for the remedy of prohibition at once. The learned
jurisdiction or in contravention of the laws of the land. It judge after hearing in detail rival submissions by the
lies, not only for excess of jurisdiction or absence of it parties granted it. In the circumstances, I think, the order
but also for a departure from the rules of natural justice. of prohibition was properly sought and granted.
It does not, however, lie to correct the course, practice or
procedure of an inferiour tribunal, or a wrong decision In the case before us, it would appear that Ringera, J.
on the merits of the proceedings - See HALSBURY’S issued the order of prohibition for two main reasons.
LAWS OF ENGLAND, 4th Edition, Vol. 1 at pg. 37 Firstly, because Gazette Notices Numbers 5689 and 5690
Paragraph 128 and the decision of this court in Kenya of 4th November, 1993 were defective and invalid for
National Examinations Council v Republic, Ex-parte: the reason that they did not identify and neither did they
Geoffrey Gathenji Njoroge & Others. Civil Appeal No. disclose the public purpose to be served by such
266 of 1996 (unreported). acquisition. Secondly, because there was a violation of
the rules of natural justice by the Commissioner while
Prohibition lies where there is a lack of jurisdiction and conducting inquiry as to compensation under section 9(1)
the proceedings in question are incomplete. A person of the Act.
against whom a non-existent jurisdiction is invoked may
move at once for prohibition, without waiting until the The respondent is the registered proprietor of the two
tribunal decides for itself whether it has jurisdiction or pieces of land known as Plot Numbers 17600 and 17601/
not. I may also add that the existence of a right of appeal 2 both in Tana River District measuring 4,386.4 and
to the courts from a tribunal does not deprive the courts 5,181.6 hectares respectively. The respondent averred in
of power to grant an order of prohibition to restrain the the affidavit in support of the application for judicial
tribunal from acting outside its jurisdiction. Nor, is the review that it had planned a major acquacultural
applicant for such an order obliged to have first exhausted development on these plots and had before these
other prescribed remedies of redress before having proceedings already spent considerable sums of money
recourse to the courts of law: Judicial Review of upon capital and other developments. By Legal Notices
Administration Action (2nd Edition) by Professor S.A. Numbers 5689 and 5690 both dated 4th November, 1993,
de Smith at page 436. the Commissioner evinced an intention to cumpulsorily
acquire the said two plots.
Suffice it to say, there cannot be a comprehensive list of
acts in respect of which prohibition will issue, but to put The Gazette Notices read as follows:-
it in the words of Atkin L J in the English case R v
Electricity Commissioners, ex parte London Electricity “GAZETTE NOTICE NO. 5689
Joint Committee Co. (1920) Ltd. [1924] 1 KB 171, 204,
205, prohibition may issue wherever any body of persons THE LAND ACQUISITION ACT
having legal authority to determine questions affecting (Cap. 295)
the rights of subjects and having a duty to act judicially
304
COMMISSIONER OF LANDS V COASTAL AQUACULTURE LTD
INTENTION TO ACQUIRE LAND It was the respondent’s submissions in the superior court
as well as in this court that both these notices were
IN PURSUANCE of section 6 (2) of the Land Acquisition defective and invalid in that “Tana River Delta Wetlands”
Act, I give notice that the Government intends to acquire for whom the plots were to be compulsorily acquired
the following land for Tana River Delta Wetlands: was neither a public body nor a purpose specified in
section 6(1) of the Act.
SCHEDULE The learned judge in a considered judgment held inter
alia:-
Plot No. Locality Approx. Area to be
Acquired in Hectares “As regards the adequacy and validity of the notice
published under Section 6(2) I have come to the judg-
17600 Tana River District 4,386.4 ment that that notice should reflect the Minister’s
17601/2 Tana River District 5,181.6 certificate to the Commissioner under Section 6 (1),
and must accordingly include the identity of the pub-
lic body for whom the land is acquired (emphasis
mine) and the public interest in respect of which it is
A plan of the affected land may be inspected at Ardhi acquired. It is only when a notice contains such in-
House, 3rd Floor, Nairobi, during office hours. formation that a person affected thereby can fairly
be expected to seize his right to challenge the legal-
Dated the 4th November, 1993. ity of the acquisition. That is because the test of the
legality of the acquisition is whether the land is re-
WILSON GACANJA quired for a public body for a public benefit and such
purpose is so necessary that it justifies hardship to
the owner. Those details must be contained in the
Commissioner of Lands.”
notice itself for the prima facie (emphasis mine) va-
lidity of the acquisition must be judged on the con-
“GAZETTE NOTICE NO. 5690 tent of the notice. The test must be satisfied at the
outset and not with the aid of subsequent evidence.”
THE LAND ACQUISITION ACT
(Cap. 295) The learned judge rejected the contention of counsel for
the Commissioner that additional evidence and
Inquiry information subsequently gleaned from the material
before the court can cure the defects apparent on the faces
of the notices. The learned judge held that the notices
IN PURSUANCE of section 9 (1) of the Land Acquisition did not identify the public body for whom the lands were
Act, I give notice that an inquiry shall be held on 30th being acquired and the public purpose to be served by
December, 1993, at Ardhi House boardroom, 4th Floor, such acquisition. He found the words “Tana River Delta
Nairobi, at 10 a.m. for hearing claims to compensation Wetlands” to be a mere geographical-cum-ecological
by persons interested in the following land: description. In the result, he granted the motion taken by
the respondent and issued an order of prohibition directed
to the Commissioner prohibiting him from continuing
SCHEDULE with an inquiry into claims for compensation under the
Act pursuant to Gazette Notices Number 5689 and 5690.
That provoked this appeal.
Plot No. Locality Approx. Area to be
Acquired in Hectares By its memorandum of appeal the Commissioner has
averred that the learned judge erred in finding that the
17600 Tana River District 4,386.4 Notice under Section 6(2) must include the identity of
17601/2 Tana River District 5,181.6 the public body for whom the land is acquired. Mrs.
Onyango, Deputy Litigation Counsel for the
Commissioner, submitted that “Tana River Delta
Every person interested in the said land is required to Wetlands” was not a geographical-cum-ecological
deliver to me, not later than the date of the inquiry, a description but was a public body for purposes of
written claim to compensation. compulsory acquisition. The word “Wetlands”, she
averred, was an international term of art indicative of a
Dated the 4th November, 1993. water catchment area. A casual glance at the Notices
WILSON GACANJA shows that they had not specified the public body for
Commissioner of Lands.” which the plots in question were required. Further, no
particular purpose for their compulsory acquisition was
305
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
stated. With these omissions, where is the basis for the and, consequently, an absence of jurisdiction in the
Minister to conclude that the two plots are required for Commissioner to act in pursuance of direction given in
the purposes of a public body? that behalf.
In this regard, it is worthy of note that the Commissioner Certainly Tana and Athi Rivers Development Authority
had been notified by the respondent’s then counsel that is not the only public body or authority charged with the
Gazette Notices Numbers 3590 and 3591 were defective management of Wetlands in Kenya. In 1971, in the Iranian
since “Tana River Delta Wetlands” was not a public body City of Ramsar, a handful of countries signed an
nor a purpose specified in Section 6(1)(a) of the Act. international treaty, the Convention on Wetlands, with
Realising this grave error or omission he consented in the purpose of promoting the conservation and
Mombasa Miscellaneous Civil Application No. 201 to sustainable use of the habitat. Kenya became a signatory
discontinue the inquiry under those Gazette Notices and to the Convention in 1990. By a press release issued on
to regazette the compulsory acquisition sought in the said 2nd February, 1997 during the World Wetlands Day,
Notices by fresh valid Legal Notices to be issued and Kenya Wildlife Service claimed that it was appointed
served in accordance with the law. This, the the implementing agency. Nothing was heard of the Tana
Commissioner did not do. He instead published fresh and Athi Rivers Authority.
invalid notices expressed in terms identical with the
earlier rejected notices. I agree with the learned judge In my opinion, the Constitution and the enabling Act
that the Commissioner or the author of the second bunch intended that the compulsory acquisition be treated with
of notices was either downright incompetent or caution and the seriousness it deserves. The notices
mischievous. should comply with the relevant provisions of the
Constitution and the enabling Act. The inquiry should
Compulsory acquisition of land is a serious matter also be conducted properly and according to law. In the
causing hardship to the owner or proprietor of the land result, I find that the Notices were defective and invalid,
to be acquired. The Constitution recognises this by the and; consequently, the inquiry was outside the area of
enactment of section 75 thereof. Sub-section (1)(b) jurisdiction of the Commissioner. Jurisdiction was
provides mandatorily that the necessity for compulsory wanting.
acquisition of land should be such as to afford reasonable
justification for the causing of hardship that may result As to the complaint that there was a breach of the audi
to any person having an interest in or right over the alteram partem rule, one only needs to look at the record
property. of inquiry on 30th December, 1993 and on 28th February,
1994. The Chairman, Mr. Mwaniki, conducted the inquiry
In the instant case, it is plainly clear that the in a combative mood. He was extremely impatient. He
Commissioner by the four Gazette Notices consciously had a duty to hear the respondent and/or its counsel on
and deliberately did not want to reveal the identity of the the objections. He did not hear them. Instead, he
public body or persons to benefit from the compulsory materially contributed to the errors giving rise to the
acquisition of the plots the subject matter of this case. application for judicial review. There was in my opinion
Moreover, he has not shown that the taking of possession a violation of the audi alteram partem rule.
or acquisition of these plots was necessary in the interest
of public purposes as enumerated in Section 75 (1)(a) of I am satisfied that the learned judge came to a correct
the Constitution. I say so because nothing would have decision and his judgment cannot be faulted. I would
been simpler for him than to state in the Notices that the dismiss this appeal with costs to the respondent.
compulsory acquisition was for the Tana and Athi Rivers
Development Authority for the development of the Dated and delivered at Nairobi this 27th day of June,
Wetlands or any other related public purpose. It was 1997.
apparent during the proceedings in the superior court and
in this appeal that the Commissioner is not so sure for
what public body or purpose he wanted to compulsorily
acquire these plots. He is still groping about in the dark P.K. TUNOI
for the reason and the purpose why he wants to JUDGE OF APPEAL
compulsorily acquire them. As was said in Re: Kisima
Farm Ltd [1978] KLR 36 which was correctly applied
by the learned judge, Section 6 of the Act requires that
the Minister be satisfied that the land to be compulsorily
acquired is required for the purpose of a public body and JUDGEMENT OF PALL J.A.
where no public body or particular purpose as envisaged
in the Act are shown in the notices the omission would I have had the advantage of reading the draft judgment
constitute an absence of jurisdiction to acquire the land, prepared by Akiwumi J.A. I agree with it. Still I think
306
COMMISSIONER OF LANDS V COASTAL AQUACULTURE LTD
that I should express my brief view in my own words as “Land Acquisition Act
it is a matter of public importance. Two questions arise
for the decision in this appeal namely:- (Cap. 295)
1. whether the Gazette Notices No.5689 and 5690 of Intention To Acquire Land.
4th November, 1993 are defective and invalid and
whether they are so incurably defective that the Com- IN PURSUANCE of section 6(2) of the Land Acquisi-
missioner of Lands or whosoever conducted inquiry un- tion Act, I give notice that the Government intends to
der s.9(3) of the Land Acquisition Act (the Act) lacked acquire the following land for Tana River Delta Wetlands:
jurisdiction and
2. whether the persons who embarked upon the said SCHEDULE
enquiry were authorised to do so.
There is no dispute that under s.75(1) of the Constitu- Plot No. Locality Approx. Area to be
tion of Kenya no property of any description can be com- Acquired in Hectares
pulsorily taken possession of and no interest in or right
over property of any description can be compulsorily 17600 Tana River District 4,386.4
acquired unless the following conditions are satisfied:- 17601/2 Tana River District 5,181.6
(a) The taking of possession or acquisition is neces-
sary for one of the public purposes therein men- A plan of the affected land may be inspected at Ardhi
tioned (b) the necessity is such as to afford reason- House, 3d Floor, Nairobi during office hours.
able justification for the causing of hardship that
may result to any person having interest in or right Dated 4th November, 1993.
over that property, and (c) provision is made by a
law applicable to that taking of possession or ac- WILSON GACANJA
quisition for the prompt payment of full compensa- Commissioner of Lands”
tion.
By the other notice the Commissioner notified that an
There is also little doubt that the above mentioned con- inquiry shall be held on 30th December, 1993 at Ardhi
stitutional requirements led to the enactment of the said House boardroom 4th Floor Nairobi at 10 a.m. for hear-
Land Acquisition Act. ing claims to compensation by persons interested in the
aforesaid two plots.
Under s.6(1) of the Act where the Minister is satisfied
that any land is required for the purposes of a public body The inquiry commenced but on the fourth day of inquiry,
and that it is necessary for the accomplishment of one of the exparte respondent Coastal Aquaculture Ltd applied
the public purposes therein set out and that the necessity for leave to apply for judicial review seeking an order of
thereof is such as to afford reasonable justification for prohibition directed against the Commissioner of Lands
the causing of any hardship that may result to any per- and or Mr. Mwaniki the Chairman of Inquiry prohibit-
son interested in the land and so certifies in writing to ing him from commencing or continuing with the in-
the Commissioner of Lands, he may in writing direct the quiry pursuant to the said Gazette notices. Additionally
Commissioner to acquire the land compulsorily. or alternatively an order of mandamus was sought in or-
der to compel the Commissioner of Lands to conduct
Under s.6(2) of the Act on receiving a direction under the Inquiry in accordance with the provisions of the Act
S.6(1) the Commissioner shall cause a notice that the and the rules of natural justice. Some other consequen-
Government intends to acquire the land to be published tial orders were also sought but they are not necessary to
in the Gazette and shall serve a copy of the notice on be set out for the purposes of this appeal. The applica-
every person who appears to him to be interested in the tion for leave was followed by a notice of motion under
land. Order 53 r 3(1) of the Civil Procedure Rules.
By a special issue of the Kenya Gazette dated 5.11.1993, Ringera J. heard the notice of motion and held that the
the Commissioner of Lands published the said Gazette Commissioner of Lands lacked jurisdiction to commence
Notices No.5689 and 5690 both dated 4th November, or continue with the inquiry and that Gazette Notice
1993. No.5689 and 5690 were defective and invalid as they
did not identify the public body for whom the land was
Gazette Notice No.5689 reads as follows: being acquired and the public purpose to be served by
such acquisition. That decision of the learned Judge is
307
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
subject matter of this appeal. There was subsequent evidence in the course of the en-
quiry that the land was required for the development and
I agree with the learned Judge that for a successful com- conversation of the Tana River Delta Wetlands by the
pulsory acquisition, the requirements of the Constitution Tana and Athi Rivers Development Authority (TARDA).
and of the Act must be strictly complied with and that if But as Ringera J following Hancox J, as he then was, in
there is full compliance with the law, compulsory acqui- Re Kisima case (supra) said “the test must be satisfied at
sition cannot be interfered with. the outset and not with the aid of subsequent evidence”.
I therefore agree that the Gazette notice or acquisition
I also agree with the learned Judge that s.75 of the Con- must of necessity disclose necessary information to jus-
stitution provides protection and safeguards to the owner tify the compulsory acquisition of land. As neither of
of the land sought to be compulsorily acquired against the aforesaid notices contained that information, I agree
and arbitrary acquisition of his property. Before the with the learned Judge that they are defective and inop-
Minister decides to compulsorily acquire a land he must erative. In the case of an invalid and materially defec-
be satisfied that (a) the land is required for the purposes tive notice of acquisition, the Commissioner cannot hold
of a public body (b) the acquisition is necessary in the inquiry under section 9(1) of the Act for the hearing of
interest of one of the public purposes specified in the claims to compensation by persons interested in the
s.75(1)(a) of the Constitution and (c) the necessity for land. He has no jurisdiction to do so.
the acquisition outweighs the hardship to the owner. The
Minister, if satisfied about these preconditions, so certi- Our Act is similar in most respects to the English Acqui-
fies in writing to the Commissioner and directs him to sition of Land (Authorisation Procedure) Act 1946.
acquire the land compulsorily. The Commissioner then Halsbury’s Laws of England 3rd Edition volume 10 at
publishes the Gazette Notice under s.6(2) of the Act and p.38 says:
serves a copy of the notice on every person who appears
to him to be interested in the lands. Upon publication of “Advertisement following the prescribed form
the notice the process of acquisition is virtually com- must..... describe the land and must state the order
plete apart from assessment and payment of compensa- that has been made....., the purpose for which the land
tion and the right of appeal under s.75(2) of the Consti- is required, the place where a copy of the order and
map may be inspected and the time (not less than 21
tution.
days from the publication for and the manner of mak-
ing objections (underscoring provided)”.
The person having interest in the land, is entitled to the
right of direct access to the High Court in order to chal- Having come to the conclusion that the Commissioner
lenge the legality of the taking possession by the Com- did not have jurisdiction to hold the inquiry under the
missioner or acquisition of his land, if he so wishes. Act, I do not consider it necessary to discuss whether
Unless the notice or acquisition reflects the necessary the person or persons who embarked upon the inquiry
ingredients of the Minister’s certificate, the person in- under s.9(3) of the Act were authorised to do so. Whether
terested in the land has no means of knowing whether or not they were properly authorised by the Minister to
the Minister’s direction to acquire the land compulsorily exercise the powers conferred upon the Commissioner
is justified or not. I, therefore, agree with the learned in accordance with s.2 of the Act, if the Gazette notices
Judge that in order to give concrete meaning to the afore- were defective no such inquiry can be possibly held.
said constitutional safeguards and protection, the notice
of acquisition under s.6(2) of the Act must reflect the Finally I do not see any merit in the appeal and the same
material contents of the Minister’s certificate. In other is dismissed with costs.
words the Gazette notice must disclose the name of the
public body for whom the land is being acquired and the Dated and delivered at Nairobi this 27th day of June 1997.
public purpose for which it is being acquired. If it fails
to do so, it is ultra vires the provisions of the Constitu-
tion and the Act. Consequently the Commissioner or
the other person or persons appointed by the Minister to G. S. PALL
conduct the inquiry under s.9(3) of the Act shall not have JUDGE OF APPEAL
jurisdiction to inquire. I am of the view that Re Kisima
Farm Ltd (1978) K.L.R. 36 is good law.
The Gazette Notice No.5689 in the instant case merely I certify that this is a true copy of the original
stated that the land was being acquired “for Tana River
Delta Wetlands”. That description alone cannot identify
the public body and the purpose for which the land was DEPUTY REGISTRAR
being acquired.
308
Section 5
Precautionary Principle
309
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
310
R v SECRETARY OF STATE FOR TRADE AND
INDUSTRY EX PARTE DUDDRIDGE
(UNITED KINGDOM QUEEN’S BENCH DIVISION, FARQUHARSON
LJ AND SMITH J, 4 OCTOBER 1994)
THE JUDGEMENTS Behind this application lies the concern of residents of
South Woodford, particularly those who are the parents
of young children, who saw a BBC Panorama television
The following Judgements were given: programme transmitted on 31 January 1994. The pro-
gramme discussed a number of epidemiological studies
SMITH J: This is an application for judicial review of which examine the possible connection between expo-
the decision of the Secretary of State for Trade and In- sure to high levels of non-ionising radiation in the elec-
dustry whereby he declined to issue regulations to the tromagnetic fields (EMFs) created by high voltage elec-
National Grid Company plc and/or other licence holders tric cables and the incidence of childhood leukaemia. To
under the Electricity Act 1989 so as to restrict the elec- the non-expert, some of these studies might appear to
tromagnetic fields from electric cables which are being suggest that children who have substantial exposure to
laid or are to be laid as part of the national grid. The EMFs from high voltage cables passing near their homes
application is brought on behalf of 3 children who live face a three to fourfold (or even possible sixfold) in-
in South Woodford, an area of North East London where creased risk of developing leukemia. However, as has
the National Grid Company is presently laying a new been readily accepted by counsel appearing for the ap-
high voltage underground cable between Tottenham and plicants, the study of the effects of EMFs by epidemiol-
Redbridge. The applicants allege that the non-ionising ogy is fraught with difficulty and the results of these stud-
radiation which will be emitted from these new cables ies, when expertly evaluated, do not allow, let alone re-
when commissioned, which will enter their homes and quire, any such positive or alarming conclusions to be
schools, will be of such a level as will or might expose drawn.
them to a risk of developing leukaemia. They say that
the Secretary of State should issue regulations which Understandably, the programme caused anxiety in the
would remove any such risk. minds of the residents and parents of South Woodford.
Some of them formed an action group and on 15 Febru-
By their application they seek an order to compel him to ary 1994 wrote to the National Grid Company seeking
issue regulations, guidelines or some other directive to information, inter alia, about the levels of radiation which
licence holders so as to ensure that the electromagnetic would be emitted from the cables then being laid near
fields from electric cables to be laid as part of the na- their homes, when those cables were energised. On 27
tional grid do not exceed (i) 0.2 micro-teslas at the near- February, the National Grid Company provided the in-
est point of houses adjoining the cables; or (ii) some other formation requested from which the action group per-
level at which, on current research, there is no evidence ceived that their children would indeed be exposed to
to suggest or otherwise hypothesise any possible risk to levels of non-ionising radiation well in excess of the av-
the health of those exposed to such fields. Alternatively, erage domestic level. The action group took the view
they seek an order of mandamus to oblige the Secretary that their children might be at risk of leukaemia if the
of State to advise the Crown to issue such regulations, cables were commissioned in the manner intended.
guidelines of other form of directive. In the further alter-
native, they seek a declaration that, in refusing to issue The action group had by this time taken legal advice and
such regulations, guidelines or directives, the Secretary on 15 March 1994 their solicitor wrote to the Secretary
of State has failed to comply with his duty under s 3 of of State asking him to lay down regulations to cover the
the Electricity Act 1989. alleged danger to health arising from the installation of
these cables. They urged him to take ‘a precautionary
Leave to move for judicial review was granted by view’ of the risk of damage to health. They warned him
Schiemann J who also made an order for expedition. Also that, if he refused, they would commence an application
before the Court is the National Grid Company plc, who for judicial review. On the same day their solicitor wrote
appear as a Party Directly Affected. to the National Grid Company, asking it to take volun-
tary measures to reduce the levels of EMF exposure or
311
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
alternatively to stop work until the issue had been re- The Electricity Supply Regulations 1988 (as amended
solved. No reply was received from the company. On 28 in 1990, 1992 and 1994) were made under prior legisla-
April, the of State replied to his letter saying that he had tion but, by virtue of para 3 of Sch 17 to the 1989 Act,
never regarded it as necessary or appropriate to take spe- take effect as if made under s 29 of that Act. The 1988
cific measures to limit EMFs to protect the public from Regulations as amended do not contain specific meas-
the possibility of a very small risk of cancer. He had re- ures to limit EMFs.
considered the matter in the light of the group’s recent
letter and application for judicial review. He adhered to It is clear that the statutory scheme requires the Secre-
his previous opinion and would oppose the application. tary of State to judge whether there exist any dangers’ or
risks of personal injury and whether he ought to exercise
Hence this application comes before the court. However, his power to make regulations under s 29. The provi-
it is important to make clear at the outset that it is not the sions confer a wide discretion upon him. In order to make
function of this court to decide whether there is in fact that judgement, he must of necessity rely upon advice
an increased risk of leukaemia from exposure to high given to him by experts.
levels of EMFs. Still less is it for the Court to decide
whether these applicants will be at any such increased The applicants argue that, in considering the issue
risk. This court appreciates that the parents of these chil- whether there exist any dangers or risks of personal in-
dren are deeply concerned about these issues and it is jury from EMFs, the Secretary of State has approached
not through any lack of sympathy with that concern that the matter in the wrong way. They submit that he has
the court must decline to decide them. The only issue asked himself whether there is evidence that exposure to
before the court is whether the Secretary of State, in de- EMFs does in fact give rise to a risk of childhood leu-
clining to take specific measures to limit the level of kaemia. Because, as we shall see, the scientific evidence
EMFs, has acted unlawfully. does not establish that is such a risk, he has concluded
that he need not use his power under s 29 of the 1989
Before summarising the arguments advanced by the par- Act to regulate exposure to EMFs. They say the proper
ties, it is necessary to set out the statutory framework in approach would be to ask himself whether there is any
order to examine the Secretary of State’s duty and the evidence of a possible risk even though the scientific
extent of his discretion. Section 3(3) of the Electricity evidence is presently unclear and does not prove the
Act 1989 (the 1989 Act) provides that: causal connection. They submit that if he had asked the
question in that way, pitching the threshold for action at
Subject to subsections (1) and (2) above, the Secre- a lower level of scientific proof, the answer would have
tary of State...shall...have a duty to exercise the func- been ‘yes’ and he would then have been obliged to make
tions assigned to him by this Part in the manner in regulations. They say that he is required to apply that
which he considers is best calculated lower threshold either as an obligation of European Com-
...... munity law or under the policy of the present Govern-
ment, as set out in a White Paper of 1990 entitled ‘This
(a) to protect the public from dangers arising from Common Inheritance’. As something of an after-thought
the generation, transmission or supply of electricity. and in reliance upon an Australian authority to which I
shall later refer, they submit that as a matter of common
One of the functions assigned to the Secretary of State is sense, the Secretary of State was bound to apply the lower
the power to make regulations relating to supply and threshold for action. They say that this error of approach
safety under s 29 of the 1989 Act. Section 29(1) pro- leaves his decision not to issue regulations open to chal-
vides that: lenge by judicial review.
The Secretary of State may make such regulations as The basis of the Applicant’s argument in favour of the
he thinks fit for the purpose of- lower threshold of scientific proof, is that, either under
Community law or under the policy of the White Paper
...... or as a matter of common sense, the Secretary of State is
obliged to apply what is known as the precautionary prin-
(b) protecting the public from dangers arising from ciple, when considering whether he is to take action un-
the generation, transmission or supply of electricity, der s 29 for the protection of human health.
from the use of electricity supplied or from the in-
stallation, maintenance or use of any electric line or There is, at present, no comprehensive and authoritative
electrical plant; and
definition of the precautionary principle. It is an expres-
(c) without prejudice to the generality of (b) above, sion which has in recent years been used in a number of
eliminating or reducing the risks of personal injury, international declarations, conventions and treaties, to
or damage to property or interference with its use, some of which the United Kingdom is a party. These
arising as mentioned in that paragraph. include the Treaty of European Union, the Maastrict
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SECRETARY OF STATE FOR TRADE AND INDUSRY EX PARTE DUDDRIDGE JOURNAL OF ENVIRONMENTAL LAW
Treaty. In none of these documents is the principle com- tary of State to conduct a cost-benefit analysis to ascer-
prehensively defined, although often the document de- tain what action could be taken and at what cost so as to
scribes what the principle is intended to mean in the con- reduce any possible risk to health from exposure to EMFs.
text of the subject matter concerned. This would have to be done, even though the scientific
evidence does not show that the risk to health actually
The applicants referred us first to the description of the exists. The Secretary of State has not done this and, say
principle adopted by Australia’s 1992 Inter-Governmen- the applicants, this failure vitiates the exercise of his dis-
tal Agreement on the Environment, which states that: cretion and renders his decision open to challenge.
where there are threats of serious of irreversible en- In response, the Secretary of State argues that he has
vironmental damage, lack of full scientific certainty given careful consideration to his duties under the Elec-
should not be used as a reason for postponing meas- tricity Act. He has considered the scientific evidence
ures to prevent environmental degradation. In the available and has taken advice from a special Advisory
application of the Precautionary Principle, public and
Group of the National Radiological Protection Board
private decisions should be guided by:
(NRPB) under the chairmanship of the very eminent
(i) careful ‘evaluation to avoid, wherever practica- epidemiologist Sir Richard Doll. This Group comprises
ble, serious or irreversible damage to the environ- highly qualified scientists who have exhaustively con-
ment; and sidered whether there is any evidence of adverse health
(ii) an assessment of the risk-weighted consequences effects from exposure to EMFs. In reliance upon their
of various options. advice, which he has accepted, the Secretary of State
has concluded that it is neither necessary nor appropri-
Second, we were referred to a passage in the report of a ate to take the specific measures contended for by the
decision of Stein J in the Land and Environment Court applicants. As to the precautionary principle, the Secre-
of New South Wales in the case of Leatch v National tary of State says that he is under no obligation of EC
Parks and Wildlife Service and Shoalhaven City Council law to apply it. In so far as the present Government
81 LGERA 270. After noting that reference is made to adopted as policy a version of the precautionary princi-
the precautionary principle in almost every recent inter- ple in their 1990 White Paper, the Secretary of State
national environment agreement and after quoting sev- claims that he has acted in accordance with that policy.
eral slightly different formulations of the principle from He also contends, in response to the applicants’ third
a variety of sources including the Intergovernmental contention, that he is not required to apply the precau-
Agreement cited above, at page 282, Stein J said: tionary principle to his consideration of s 29 a matter of
common sense.
In my opinion the precautionary principle is a statement
of commonsense and has already been applied by deci- The National Grid Company supports the submissions
sion makers in appropriate circumstances prior to the of the Secretary of state. I turn now to consider briefly
principle being spelt out. It is directed towards the pre- the nature and content of the scientific evidence of the
vention of serious or irreversible harm to the environ- connection between exposure to EMFs and the incidence
ment in situations of scientific uncertainty. Its premise is of childhood leukaemia.
that where uncertainty or ignorance exists, concerning
the nature or scope of environmental harm (whether this The possibility of the existence of a connection between
follows from policies, decisions or activities), decision childhood cancer and EMFs was first raised in 1979.
makers should be cautious. Since that time eleven epidemiological studies have been
published, most of which suggest the possibility of a link
It appears to me, from both of those formulations, that between exposure to EMFs and leukaemia. It is com-
the principle is primarily intended to avoid long term harm mon ground that the early studies were unsatisfactory, in
to the environment itself rather than damage to human that the methodology was seriously flawed. There are
health from transitory environmental conditions. However, real difficulties in measuring or assessing the extent of
as we shall see, in some circumstances, the principle has the subjects’ exposure. The more recent studies, which
been declared to be applicable for the purpose of safe- emanate from Scandinavia, are said to be more reliable
guarding human health. Although it does not appear to in that the methodology is improved, but the numbers of
me that either formulation of the principle supports their cases studied are very small and many of the results do
contention, the applicants submit that the principle re- not carry statistical significance. More research is needed
quires that precautionary action be taken where the mere and is presently in progress.
possibility exists of a risk of serious harm to the environ-
ment or to human health. Where this possible risk exists, It is not necessary for the purposes of this judgement to
a cost-benefit analysis must be undertaken so as to deter- examine the epidemiological studies themselves. They
mine what action would be appropriate. Thus, applica- have been expertly evaluated by two experts on behalf
tion of the principle in this case would require the Secre- of the applicants. The conclusions of the Advisory Group,
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
who have also examined the studies and reports of ex- logical evidence to date is more consistent with the pos-
perimental work, are set out in various reports from which sibility that residential EMF exposure increases the risk
it is only necessary to quote brief extracts. of childhood leukaemia than with the possibility that there
is no association between the two.’
At para 17 of this affirmation dated 8 June 1994, Dr.
J.A. Dennis, a former member of the NRPB who has Those two expressions of opinion summarise the appli-
advised the applicants in the present proceedings, sum- cants’ case that there is an increased risk of developing
marises the combined effect of the epidemiology so far cancer from exposure to EMFs. Neither opinion, it will
published in this way: ‘The totality of the scientific evi- be observed, suggests that a causal link has yet been es-
dence points to the weak possibility that prolonged ex- tablished between EMFs and cancer. Neither supports
posure to power frequency magnetic fields, while not a the applicants’ claim for the limitation of EMFs to 0.2
direct causal factor in inducing human leukaemias, may microtesla or indeed any particular level.
enhance the risks of these cancers especially in young
children when acting in conjunction with other social The Advisory Group of the NRPB which has advised
and environmental factors. The degree of this enhance- the Secretary of State has reached slightly different con-
ment for prolonged exposure to fields in excess of 100 clusions. The Group has reported on several occasions
to 300 nanoteslas may be about 1.5 to 4.’ during the past 2 years. In 1992, after reviewing the ex-
perimental and epidemiological data concerning the pos-
Pausing there, it is necessary to explain that the nanotesla sibility that electromagnetic fields might be a cause of
and the microtesla are the usual units of measurement of cancer, the Group concluded that:
EMFs. A microtesla is equivalent to 1000 nanotesla.
Ordinary domestic exposure is said to be in the range of the epidemiological findings...provided no good evi-
30 to 150 nanotesla. The children of South Woodford dence of a cancer risk, to either children or adults,
will, according to the figures provided by the national from normal levels of power frequency electromag-
Grid Company, be exposed to fields well in excess of netic fields. The experimental evidence strongly sug-
gested that these radiations did not harm genetic
300 nanotesla, possibly as much as 3,740 nanotesla or
material and so would not initiate cancer. The only
3.74 microtesla. Dr. Dennis also expressed the opinion possibility was that they might act as promoters, that
that: is, they might increase the growth of potentially ma-
lignant cells. The epidemiological evidence for such
....if there is a real risk of enhancement of the inci- an effect was however, weak, with the least weak
dence of human leukaemias by prolonged exposure evidence pointing to the possibility of causing tu-
to magnetic fields, it is not possible to say that there mours of the brain. In the absence of unambiguous
are threshold levels below or above which the en- experimental evidence to suggest that exposure to
hancement would not occur. Such epidemiological these EMFs was likely to be carcinogenic, the find-
evidence as exists indicates that the enhancement ings could be regarded only as sufficient to justify
increases progressively with the intensity of the field. formulating a hypothesis for testing by further in-
vestigation.
He concluded:
In March 1993 the Advisory Group published a sum-
The question as to what level magnetic fields should mary of its views on the studies published since their
be reduced must depend on a detailed cost-benefit 1992 Report. They considered three new studies relating
analysis. In view of the wide range of sources of to occupational exposure to EMFs but said that these
magnetic fields and their benefits to society it will produced conflicting and inconclusive results. Two re-
probably to be possible to determine a simple value
cently published Scandinavian residential studies were
[sic].
also reviewed. The Group considered:
In his review of the epidemiological studies published to
date, Professor Scott Davies, the other expert relied on ....that these studies were well controlled and sub-
by the applicants, concludes by saying: ‘Thus on bal- stantially better than those that previously reported
ance it is my judgement that at present it is not possible associations with childhood cancer. However, the new
to conclude with certainty that residential EMF expo- studies report few cases. They do not establish that
exposure to electromagnetic fields is a cause of can-
sure causes leukaemia in childhood. In other words, I do
cer, although they provide weak evidence to suggest
not believe that a causal relationship has yet been estab- the possibility exists. The risks would however be
lished. Nevertheless it is also my judgement that the most small. In the absence of any convincing experimen-
important criteria of causation... have largely been met: tal support, the Group stresses the urgent need for
strength of association, temporality, biological gradient epidemiological studies based on objective measure-
and to a fair degree consistency. Thus, in my judgement ments of exposure to electromagnetic fields and the
that such exposures may increase the risk of childhood need to investigate further the basis for any interac-
leukaemia cannot be dismissed, given the current evi- tions of environmental levels of electromagnetic fields
dence. Furthermore, it is my opinion that the epidemio- within the body.
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SECRETARY OF STATE FOR TRADE AND INDUSRY EX PARTE DUDDRIDGE JOURNAL OF ENVIRONMENTAL LAW
They concluded: cial review. Still less, in the light of the advice, could
there be any basis for criticising his refusal to restrict
The views of the Advisory Group have been noted in exposure to O2 microtesla or indeed to any other spe-
the formulation of restrictions on human exposure to cific level.
EMFs developed by the Board (that is the NRPB),
although at present epidemiological studies do not The Applicants submit however, that if the Secretary of
provide an effective basis for quantitative restrictions
State is under a duty to take account of the precaution-
on exposure to electromagnetic fields.
ary principle when considering his duties under the 1989
Later that year, in the 1993 Board statement, The Group Act, the basis for its application is laid, even on the ad-
said: vice given by the NRPB. That is so because the NRPB
has advised that there is a possibility that there exists an
It can be concluded from these reviews that there is increased risk of leukaemia from exposure to EMFs. That
no clear evidence of adverse health effects at the lev- submission appears to me to be correct, especially now
els of electromagnetic fields to which people are nor- that the Secretary of State is aware of the levels of EMFs
mally exposed. In particular, the epidemiological data to which these applicants will be exposed when the
do not provide a basis for restricting human expo-
Tottenham to Redbridge cable is energised. No challenge
sure to electromagnetic fields and radiation....
was offered to the applicants’ calculation, based on Na-
In 1994 the Group’s most recent conclusion was that: tional Grid Company data, that some residents could be
exposed to as much as 3.74 microtesla or 3740 nanotesla.
The studies do not establish that exposure to electro- The effects of this level of exposure are not known but
magnetic fields is a cause of cancer but, taken to- the exposure is significantly greater than the ordinary
gether, they do provide some evidence to suggest that domestic levels of exposure, of up to 150 nanotesla. I
the possibility exists in the case of childhood leukae- am prepared to accept that, if the Secretary of State is
mia. The number of affected children is however very
shown to be under a legal obligation to apply the precau-
small.
tionary principle to legislation concerned with health and
Experimental studies to date have failed to establish the environment, the possibility of harm raised by the
any biological plausible mechanism whereby carci- existing state of scientific knowledge is such as would
nogenic processes can be influenced by exposure to oblige him to apply it in considering whether to issue
the low levels of EMFs to which the majority of peo- regulations to restrict exposure to EMFs. He would at
ple are exposed.
least in my view be obliged to conduct the cost-benefit
They continue: analysis necessary for the proper application of the prin-
ciple. The Secretary of State accepts that he has not con-
Thus at present, there is no persuasive biological evi- sidered the precautionary principle, except to the lim-
dence that ELF (extremely low frequency) electro- ited extent required by the policy set out in the 1990 White
magnetic fields can influence any of the accepted Paper. If he were to be under an obligation to apply the
stages of carcinogenesis. There is no clear basis from principle, I would be in favour of granting relief limited
which to derive a meaningful assessment of risk, nor
to requiring the Secretary of State to reconsider the need
is there any indication of how any putative risk might
vary with exposure. for the regulation of EMFs in the light of that principle.
The Group stresses the urgent need for large and statisti- Before turning to consider whether the Secretary of State
cally robust studies based on objective measurements of is obliged by EEC law to apply the precautionary princi-
exposure. ple, it is convenient to deal with the applicants’ other
submissions.
It will be seen that there is not a great difference of opin-
ion between the experts who have provided advice to the The 1990 White Paper ‘This Common Inheritance’ Cm
Secretary of State and the experts who have advised the 1200 was presented to Parliament as a statement of Brit-
applicants in these proceedings. The NRPB Advisory ain’s environmental strategy by several Secretaries of
Group accepts that there is a possibility of a connection State including those for the Environment, Health and
between EMFs and childhood leukaemia. They see the Trade and Industry. It explained that the foundation of
need for further research. But they regard the connec- Government policy was the ethical imperative of stew-
tion as biologically implausible and they see no basis for ardship which should underlie all environmental poli-
placing a quantitative restriction on human exposure to cies. Mankind, as custodian of the planet, has a duty to
EMFs. The applicants accept that unless the Secretary look after the world prudently and conscientiously. This
of State is bound to apply the precautionary principle, entailed a responsibility to future generations to preserve
his acceptance of the advice that there is no basis on and enhance the environment. It continued at para 1.15:
which to restrict human exposure to EMFs and the con- ‘In order to fulfil this responsibility of stewardship, the
sequent exercise of his discretion to decline to issue regu- Government has based the policies and proposals in this
lations or other directives cannot be impugned by judi- White paper on a number of supporting principles. First,
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
we must base our policies on fact not fantasy, and use this policy and has concluded that such are neither nec-
the best evidence and analysis available. Second, given essary nor appropriate. In my judgement, on the basis of
the environmental risks, we must act responsibly and be the advice he has received, his conclusion that there is
prepared to take precautionary action where it is justi- no significant risk of developing cancer from exposure
fied. Third, we must inform public debate and public to EMFs cannot be impugned as wholly unreasonable or
concern by ensuring publication of the facts. Fourth, we perverse.
must work for progress just as hard in the international
arena as we do at home. And fifth, we must take care to The applicants’ third submission, that the Secretary of
choose the best instruments to achieve our goals.’ It con- State should apply the precautionary principle as a mat-
tinued: ter of common sense and reasonableness was not argued
with any great vigour by Mr. Beloff QC who appeared
We must act on the facts and on the most accurate for the applicants. It did not feature in either the original
interpretation of them, using the best scientific and or amended versions of his most helpful skeleton argu-
economic information. ment. I think it is not unfair to him to suggest that it
That does not mean we must sit back and wait until occurred to him as a possible argument as he read to the
we have 100% evidence about everything. Where the Court the above citation from the judgement of Stein J
state of our planet is at stake, the risks can be so high in Leatch. Even if Stein J were purporting to make a gen-
and the costs of corrective action so great, that pre- eral statement that the precautionary principle is of uni-
vention is better and cheaper than cure. We must ana-
versal application on the ground that it comprises com-
lyse the possible benefits and costs both of action
and inaction. Where there are significant risks of dam- mon sense, his statement would not be binding on this
age to the environment, the government will be pre- court although it would, of course, command respect.
pared to limit the use of potentially dangerous mate- However, Stein J’s reference to the principle as a state-
rials or the spread of potentially dangerous pollut- ment of common sense was made in the context of his
ants, even where scientific knowledge is not conclu- refusal to decide whether the principle (as enunciated in
sive, if the balance of likely costs and benefits justi- the 1992 Convention on Biological Diversity, which
fies it. This precautionary principle applies particu- Australia had ratified and the scope of which was di-
larly where there are good grounds for judging ei- rectly relevant to the case in point) had been imported
ther that action taken promptly at comparatively low
into domestic law. He said he need not decide that issue
cost may avoid more costly damage later, or that ir-
reversible effects may follow if action is delayed. as the precautionary principle was a statement of com-
mon sense. But the statute under consideration, the Na-
As with the precautionary principle itself, it appears to tional Parks and Wildlife Act 1974 (NSW) permitted the
me that this policy is intended to protect the environ- Court to take into consideration any other matter which
ment itself and is not intended to apply to damage to the court considers relevant. It is clear from the judge-
health caused by environmental factors unless those fac- ment that Stein J regarded the precautionary principle or
tors are or might in themselves be damaging to the envi- what I have stated this may entail to be relevant to the
ronment in the long term. However, the Secretary of State issues of preservation of fauna which were then under
has accepted that the policy does apply to cases such as consideration. He had the power to take it into account
the present and he claims that he has acted in accord- and he chose to do so. The decision is of no relevance in
ance with it. English law and in any event gives no support for the
proposition that or any other decision-maker is obliged
The applicants submit that the White Paper has misun- to take the principle into account in all decisions involv-
derstood the precautionary principle. They observe that ing environmental or health considerations. I find the
it seeks to set the threshold for action where a signifi- proposition that the Secretary of State’s decision may be
cant risk of damage arises, whereas, say the applicants, impugned on Wednesbury grounds, because he has failed
the precautionary principle requires action as soon as any to apply the principle under the dictates of commonsense
possible risk is demonstrated. As I have already said, there to be a startling proposition and I have no hesitation in
is no single authoritative definition of the principle and rejecting it.
the none of formulations we have seen is couched in the
very wide terms contended for by the applicants. In any It follows that this application can only succeed if the
event, this argument appears to me to be of no relevance. applicants satisfy the court that the Secretary of State is
If the Government announces a policy which it intends under a duty imposed by EC law to apply the precau-
to adopt without being under any obligation to do so, it tionary principle.
must be entitled to define the limits of that policy in any
way it wishes. If the Government says it will apply a The applicants’ argument is based on art 130r of the EC
precautionary policy when it perceives a significant risk Treaty as amended by the Treaty of European Unity, the
of harm, it must, in my view, be entitled to apply that Maastrict Treaty, which came into effect in November
threshold for action. The Secretary of State says that he 1993. They submit that art 130r is binding on Member
has considered the need for regulations in the light of States and that the Secretary of State must therefore con-
316
SECRETARY OF STATE FOR TRADE AND INDUSRY EX PARTE DUDDRIDGE JOURNAL OF ENVIRONMENTAL LAW
sider his powers and duties under the 1989 Act in the 4. Within their respective spheres of competence, the
light of the duties imposed by art 130r. It is common Community and the Member States shall cooperate with
ground that some articles of the Treaty have direct effect third countries and with the competent international or-
and confer personal rights on individual citizens of the ganisations. The arrangements for Community coopera-
Community. Other articles impose an immediate duty of tion may be the subject of agreements between the Com-
compliance upon Member States. Others impose no ob- munity and the third Parties concerned, which shall be
ligation at all unless and until the Community, acting negotiated and concluded in accordance with Article 228.
through its institutions, promulgates a measure which
imposes a binding obligation on Member States. It is The previous subparagraph shall be without prejudice to
necessary therefore to construe art 130r so as to decide Member States’ competence to negotiate in international
into which category it falls. Article 130r, as amended, bodies and to conclude international agreements.
provides:
In order properly to construe the effect of art 130r, it
1. Community policy on the environment shall contrib- must be read together with art 130s and art 130t. Article
ute to pursuit of the following objectives. 130s provides:
- preserving, protecting and improving the quality of 1. The Council, acting in accordance with the proce-
the environment; dure referred to in Article 189c and after consulting the
Economic and Social Committee, shall decide what ac-
- protecting human health; tion is to be taken by the Community in order to achieve
the objectives referred to in Article 130r.
- prudent and rational utilisation of natural resources;
2. By way of derogation from the decision-making pro-
- promoting measures at international level to deal cedure provided for in paragraph 1 and without preju-
with regional or worldwide environmental problems. dice to Article 100a, the Council, acting unanimously on
a proposal from the Commission and after consulting
2. Community policy on the environment shall aim at the European Parliament and the Economic and Social
a high level of protection taking into account the diver- Committee shall adopt:
sity of situations in the various regions of the Commu-
nity. It shall be based on the precautionary principle and - provisions primarily of a financial nature;
on the principles that preventive action should be taken,
that environmental damage should as a priority be recti- - measures concerning town and country planning,
fied at source and that the polluter should pay. Environ- land use with the exception of waste management
mental protection requirements must be integrated into and measures of a general nature and the manage-
the definition and implementation of other Community ment of water resources;
policies.
- measures significantly affecting a Member State’s
In this context, harmonisation measures answering these choice between difference energy sources and the
requirements shall include, where appropriate, a safe- general structure of its energy supply.
guard clause allowing Member States to take provisional
measures for non-economic environmental reasons, sub- The Council may, under the conditions laid down in the
ject to a Community inspection procedure. preceding subparagraph, define those matters referred
to in this paragraph on which decisions are to be taken
3. In preparing its policy on the environment, the Com- by a qualified majority.
munity shall take account of:
3. In other areas, general action programmes seeking
- available scientific and technical data; out priority objectives to be attained shall be adopted by
the Council, acting in accordance with the procedure
- environmental conditions in the various regions of referred to in Article 189b and after consulting the Eco-
the Community; nomic and Social Committee.
- the potential benefits and costs of action or lack of The Council, acting under the terms of paragraph 1 or
action; paragraph 2, according to the case, shall adopt the meas-
ures necessary for the implementation of these pro-
- the economic and social development of the Com- grammes.
munity as a whole and the balanced development
of its regions. 4. Without prejudice to certain measures of a Commu-
nity nature, the Member States shall finance and imple-
317
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
ment the environment policy. alone on the basis of so general a statement of objectives
and considerations.
4. Without prejudice to the principle that the polluter
should pay, if a measure based on the provisions of para- Mr. Richards for the Secretary of State submits that when
graph 1 involves costs deemed disproportionate for the Article 130r is examined in context and in particular in
public authorities of a Member State, the Council shall, the light of arts 130s and 130t, it can be seen that it lays
in the act adopting that measure, lay down appropriate down principles upon which Community policy on the
provisions in the form of: environment will be based. It does not impose any im-
mediate obligation on Member States to act in a particu-
- temporary derogations and/or lar way. For the reasons which follow, I accept Mr. Rich-
ard’s submission.
- financial support from the Cohesion Fund...
First, it seems to me that the ordinary sense of the words
Further, art 130t provides: of the Article itself shows that it is intended that a policy
for the environment will be formulated at some future
The protective measures adopted pursuant to Article 130s time. Paragraph 1 provides the objectives; para 2 is
shall not prevent any Member State from maintaining or mainly concerned with the principles which will under-
introducing more stringent protective measures. Such lie the policy; and para 3 described some of the factors
measures must be compatible with this Treaty. They shall which must be taken into account.
be notified to the Commission.
Second, examination of art 130s reveals that it is the clear
Finally, art 130r should be read subject to art 3b of the intention that the policy envisaged in art 130r shall be
Treaty which contains what is known as the Subsidiarity brought into effect by the introduction of measures by
clause and provides: the various Community institutions. The Council will
decide what action is to be taken. The Council, after con-
The Community shall act within the limits of the powers sultation will adopt general action programmes setting
conferred upon it by this Treaty and of the objectives out priority objectives. Some of those measures may well
assigned to it therein. be binding on Member States, who will, in general, have
to pay the costs of implementation. Whether the meas-
In areas which do not fall within its exclusive compe- ure will be binding on Member States will depend upon
tence, the Community shall take action, in accordance the nature of the measure. Article 189, which describes
with the principle of subsidiarity, only if and in so far as the binding force of each type of measure, provides:
the objectives of the proposed action cannot be suffi-
ciently achieved by the Member States and can there- In order to carry out their task and in accordance with
fore, by reason of the scale or effects of the proposed the provisions of this Treaty, the European Parlia-
action, be better achieved by the Community. ment acting jointly with the Council, the Council and
the Commission shall make regulations and issue
directives, take decisions, make recommendations or
Any action by the Community shall not go beyond what
deliver opinions.
is necessary to achieve the objectives of the Treaty.
A regulation shall have general application. It shall
My initial reaction to these provisions is that if the ap- be binding in its entirety and directly applicable in
plicants submission be right that art 130r imposes an all Member States.
immediate obligation upon Member States, it would fol- A directive shall be binding, as to the result to be
low that since November 1993, Secretaries of State in achieved, upon each Member State to which it is ad-
several government departments and their counterparts dressed, but shall leave to the national authorities the
in every other country within the Community, have been choice of form and methods.
obliged to apply the precautionary principle to a wide A decision shall be binding in its entirety upon those
range of legislation. That would entail the need to con- to whom it is addressed.
duct cost-benefit analyses in respect of every known risk
of damage to the environment and every known risk to Recommendations and opinions shall have no binding
human health from the environment. They would then force.
be obliged to legislate in every case in which the cost-
benefit analysis showed that action would be reasonable. In my judgement it is plain from that recital of the vary-
All this would be obligatory as a matter of national ini- ing effects of different types of measure that it is not
tiative, in the absence of any definition of the precau- intended that a statement of policy or, still less, a state-
tionary principle and before any formulation of a coher- ment of the principles which will underlie a policy should
ent policy on the environment. I find quite remarkable in itself create an obligation upon a Member State to
the proposition that each state should be obliged to act take specific action. It seems to me that in accepting the
318
SECRETARY OF STATE FOR TRADE AND INDUSRY EX PARTE DUDDRIDGE JOURNAL OF ENVIRONMENTAL LAW
provisions of Article 130r, a Member State has done no obligations and rights as mentioned. Section 2(2) em-
more than to indicate in advance its consent in principle powers, enables and permits. It does not impose any duty
to the formulation of a policy governed by the objectives and it does not assist in determining whether art 130r
there stated and to the introduction of measures designed imposes obligations upon Member States.
to implement that policy. The status of the precautionary
principle would appear to be no more than one of the Next, Mr. Beloff seeks to rely on the well-established
principles which will underlie the policy when it is for- principle that there is a duty upon the national courts of
mulated. member states to interpret a national statute so as to
accord with relevant Community law; see Garland v
Unless by other argument, the Applicants are able to cast British Rail (1983) 2 AC 751, (1982) 2 All ER 402. Mr.
doubt on the construction of art 130r contended for by Beloff seeks to extend this proposition to establish a duty
Mr. Richards, I would not be prepared to hold that art on the Secretary of State to take the precautionary
130r creates any obligation upon the Secretary of State principle into account in considering the 1989 Act.
to apply the precautionary principle to his consideration
of his duties under s 3 of the 1989 Act. The argument comprises two propositions. The first is
that there is a duty to interpret a national statute so as to
The applicants have raised a number of other arguments accord with EC law. In fact, Garland dealt with the duty
in support of their contention. First they rely on art 5 of of the courts in that regard. Even assuming that there is a
the Treaty of Rome which provides: corresponding duty on Ministers to interpret their statu-
tory powers and duties so as to accord with EC law, it
Member States shall take all appropriate measures, does not follow that there is a duty to interpret national
whether general or particular to ensure fulfillment of statutes in accordance with community policy as opposed
the obligations arising out of this Treaty or resulting to a Community obligation. In Garland, the European
from action taken by the institutions of the Commu- Court of Justice had held, on a reference from the House
nity. They shall facilitate the achievement of the Com-
of Lords, that Article 119 of the Treaty conferred directly
munity’s tasks. They shall abstain from any measure
which could jeopardize the attainment of the objec- enforceable Community rights on individual citizens.
tives of this Treaty. Thus, it dealt with an obligation of Community law, not
a statement of policy, still less a statement of principles
Mr. Beloff submits that this Article has been relied upon to underlie a future policy.
in a variety of situations to enforce compliance with
Community obligations. He cited or referred to a number The second proposition is that there is nothing which
of cases but in my view they do not support his conten- would prevent the Secretary of State from taking the pre-
tion. The various cases (which include Case 45/76 Comet cautionary principle into account when he considers his
(1976) ECR 2043, Case 68/88 Commission v Greece duties under the 1989 Act. Application of the principle
(1989) ECR 2965 and Case C-2/90 Commission v Bel- to the 1989 Act would not in any way distort the Secre-
gium (1993) 1 CMLR 365), to the detail of which I do tary of State’s powers and duties to protect the public
not propose to refer, are merely examples of the way in from harm. That proposition seems to me to be correct
which Article 5 has been relied upon to enforce an es- but the fact that the Secretary of State could, if he wished,
tablished obligation of EC law. None of them assists in lawfully apply the precautionary principle to the 1989,
determining whether a particular Treaty provision im- Act does not impose upon him a duty to do so.
poses a binding obligation. I conclude that art 5 is of no
assistance to the applicants. It begs, but does not answer, Mr. Beloff has, as it appears to me, enunciated two cor-
the question as to whether art 130r creates an obligation rect propositions. However, in my judgement, the two
on Member States. propositions do not logically connect so as to impose a
duty on the Secretary of State to apply the principles
A similar objection must be taken to Mr. Beloff’s argu- enunciated in art 130r. There is no obligation unless art
ment that s 2(2) of the European Communities Act 1972 130r itself imposes one. We are back to the same ques-
imposes on the Secretary of State a duty to apply the tion, but we have not been provided with an answer.
precautionary principe. In my view, s 2(2) does no such
thing. It empowers the Queen by Order in Council and Next Mr. Beloff sought to rely on Commission v Bel-
Ministers or departments by regulation to implement gium (1993) 1 CMLR 365 (the Walloon Waste case). In
Community obligations or to enable Treaty rights of the that case Belgium had forbidden the importation of waste
United Kingdom or its citizens to be enjoyed. It also pro- into Wallonia. The Commission alleged inter alia that
vides that in the exercise of any statutory power or duty, this was a breach of art 30, which prohibits restriction
including the power or duty to legislate by means of or- on the free movement of goods. Belgium argued that the
ders, rules, regulations or other subordinate instrument, restriction was justified on environmental and health
the person entrusted with the power or duty may have grounds. At page 397, the Court held that:
regard to the objects of the Communities and to any such
319
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
The principle that environmental damage should as which now embodies the principle of subsidiarity) rec-
a priority be rectified at source - a principle laid down ognises that London’s environmental traffic problems
by Article 130r(2) EEC for action by the Commu- cannot be solved, although they can be ameliorated by
nity relating to the environment - means that it is for Council Directives to control every vehicle at all times
each region, commune or other local entity to take
throughout the Community.
appropriate measures to receive, process and dispose
of its own waste. Consequently waste should be dis-
posed of as close as possible to the place where it is The attainment of the Community object of preserving,
produced in order to keep the transport of waste to protecting and improving the quality of the environment
the minimum practicable. requires action at the level of individual member states.
The Court held that Belgium’s actions were consistent Pausing there it is upon that sentence Mr. Beloff relies
with the policy of art 130r. That decision does not in any as demonstrating that art 130r is intended to impose an
way assist Mr Beloff to show that Belgium was under a obligation upon member states to act. The fallacy of his
duty to apply art 130r. It only established that if Bel- argument is clearly seen by continuing with Lord
gium chose to do so and thereby contravened the require- Templeman’s speech. He goes on:
ment of art 30 not to restrict the movement of goods,
that contravention would be justified. A vehicle which complies with all the...technical re-
quirements and standards of Directives issued by the
Mr. Beloff also relied on the case of London Borough’s Council...and is therefore entitled to be
Transport Committee v Freight Transport Association used...throughout the Community is not hereby enti-
tled to be driven on every road, on every day, at every
Limited (1991) 3 All ER 915, (1991) 1 WLR 828 in sup-
hour throughout the community. In the interests of
port of the proposition that art 130r imposed an obliga- the environment, the traffic authorities of Santiago
tion to act upon Member States. The reference to art 130r de Compostela may ban all or some Community ve-
in Lord Templeman’s speech, with whom all four other hicles from medieval streets. The traffic authorities
Lords of Appeal agreed, was a reference to the pre- of Greater London may ban all or some Community
Maastrict version of the Article, but nothing turns upon vehicles from residential streets at night.
the differences between the two. Under their statutory
power, one of the objects of which was the protection of From this passage, it is clear that Lord Templeman was
the environment of Greater London, the appellants had not suggesting that Article 130r imposed a duty upon
made an order prohibiting the driving of goods vehicles Member States to protect their environment by regulat-
over a certain weight in certain restricted streets during ing traffic or indeed by any other means. He was saying
prescribed hours unless a permit had been issued. From that art 130r permitted them to do so if they chose.
1 January 1988, all permits issues contained a condition
requiring that the vehicle be fitted with an air brake noise In my judgement, none of the cases cited to us by Mr.
level suppressor. The respondents argued that this con- Beloff gives any support for the essential proposition that
dition was unlawful as being incompatible with certain art 130r imposes upon Member States an immediate ob-
Council Directives governing technical aspects of brak- ligation to apply the precautionary principle in consider-
ing devices and permissible sound levels of vehicles. ing legislation relating to the environment or human
health.
The House of Lords held that the condition did not pro-
hibit the use of vehicles on grounds relating to their brak- The Secretary of States’s submissions are given support
ing devices or to their permissible sound levels. There- by the Resolution of the European Parliament passed on
fore it did not conflict with the directives of those topics. 5 May 1994 entitled ‘Resolution on Combating the Harm-
It sought to regulate traffic in certain places and at cer- ful Effects of Non-ionising Radiation’. The Resolution
tain hours for the purpose of protecting the environment. took into account the precautionary principle included
As such it was consistent with Community policy on the in art 130r; it recognised that the reports of harmful ef-
protection of the environment. Thus it was lawful under fects of EMFs were scientifically unconfirmed; it recog-
Community law. nised the difficulties of interpretation of epidemiologi-
cal studies and of establishing a relationship between dose
The passage upon which Mr. Beloff relied is found at and effect so as to quantify the effects of exposure. It
page 838E of the latter report where Lord Templeman then called upon the Commission to propose measures
says: ....the Council has issued 140 Directives prescrib- for the various technologies generating EMFs seeking
ing technical requirements and safety and environmen- to limit the exposure of workers and the public to such
tal standards for vehicles, their components and spare radiation. It expressed the view that corridors must be
parts, so that national requirements and standards shall recommended for high tension transmission lines, within
not infringe Article 30 or obstruct the free flow of goods which there should be a ban on dwellings. It considered
and services throughout the Community. But paragraph that any proposal to set up new transmission lines must
4 of Article 130r (which is predecessor of Arcticle 3b be subjected to environmental impact assessment and
320
SECRETARY OF STATE FOR TRADE AND INDUSRY EX PARTE DUDDRIDGE JOURNAL OF ENVIRONMENTAL LAW
calls on the Commission to provide for this requirement well established, regulations have been made which have
in the next amendment of the relevant Directive. It called had far-reaching and very costly effects upon operators
on the Council to issue recommendations to Member in the industries affected. The example of asbestos springs
States with a view to the introduction of measures to pro- to mind. However, given the uncertain state of scientific
tect the population in areas crossed by high tension lines. knowledge about the effect of EMFs, it would be sterile
The premise upon which this resolution rests is that the to debate whether regulations could lawfully be imposed
development of Community policy in this field requires which applied to existing installations.
the adoption of specific measures to that end. No one
suggests that a resolution of the European Parliament is Of greater interest and assistance to the Court was Mr.
itself binding upon Member States. That the European Newman’s reference to the recent judgement of the Eu-
Parliament should have passed such a resolution is con- ropean Court of Justice in the case of Peralta, Case C-
sistent with the Secretary of State’s submission that art 379/92, as yet unreported. Mr. Peralta, an Italian national
130r does not impose an obligation to act of its own ini- and Master of a ship flying the Italian flag, had been
tiative before such time as regulations or directives are prosecuted for discharging caustic soda into the sea out-
issued by the Council. side Italian territorial waters. The relevant provision of
Italian law prohibited the discharge of such substances
Mr. Richards submits that the status of the precaution- within territorial waters by ships of any flag and also
ary principle in art 130r is well summarised in a book prohibited such discharges by Italian ships on the high
edited by Tim O’Riordan and James Cameron (junior seas. Mr. Peralta sought to argue that the relevant provi-
counsel for the applicants) entitled ‘Interpreting the Pre- sion of Italian law was inconsistent with the principles
cautionary Principle’ to which we were introduced by of prevention referred to in art 130r and could therefore
Mr. Beloff. In a chapter written by Nigel Haigh, whose be challenged. In rejecting this submission on two
credentials are not stated but who we understand is not a grounds, the Court said at para 37, in respect of its sec-
lawyer, we find at page 237: ond reason:
Now that the Maastricht Treaty is ratified the pre- Furthermore Article 130r confines itself to defining
cautionary principle will apply to a British Minister the general objectives of the Community in environ-
when, as a member of the Council, he contributes to mental matters. The responsibility for deciding upon
the formulation of EC policy by agreeing the form of the action to be taken is entrusted to the Council by
words in an item of EC legislation. The principle Article 130s. Article 130t specifies, in addition, that
applies to Community policy and does not apply to the protective measures adopted in common pursu-
any aspects of purely national policy which are not ant to Article 130s shall not prevent any member state
part of EC policy. from maintaining or introducing more stringent pro-
tective measures compatible with the Treaty.
Mr. Beloff described Mr. Richards’ reference to that pas-
sage as teasing. Perhaps it was. Certainly the book car- This statement of the effect of art 130r is entirely con-
ries no great authority. The passage is of interest only in sistent with and supportive of the arguments advanced
that it demonstrates the conclusion which an interested by the Secretary of State in the present case. Mr. Beloff
commentator had reached when considering the ques- contended that Peralta’s case was concerned with the
tion other than in the course of litigation. question of whether: art 130r had such qualities as made
it directly effective as an EC provision in the Italian
I have so far said nothing of the submissions of Mr. Courts and not with the question of whether it imposed
Newman, Leading Counsel for the National Grid Com- an obligation on Member States. It appears to me that
pany, save that they supported those made on behalf of para 57 answers both questions in the negative and pro-
the Secretary of State. vides direct support to the Secretary of State’s submis-
sions.
Mr. Newman’s first submission was to the effect that any
proposal would be unrealistic which required the Na- Finally, Mr. Newman relied upon art 35, the subsidiarity
tional Grid Company to abandon an installation which provision, as supporting the contention that art 130r does
had cost $25 million and possibly even to shut down sub- not impose an obligation on Member States to legislate
stantial sections of the national grid. His second was that in the light of the precautionary principle or any other
any restriction upon the use of an electric cable which principle set out in the Article. Mr. Newman submits that
was already installed would be unlawful as being con- the Community policy on the environment is not or will
trary to the principle of EC law that regulations should not be an area which is reserved for the exclusive com-
not have retrospective effect. In view of the conclusions petence of the Community. Thus, under the principle of
which I have reached, it is not necessary for me to deal subsidiarity, it is open to Member States to take such
in detail with these submissions. I say only that I am not steps by way of legislation as they think right in connec-
at present convinced that they are correct. In the field of tion with environmental and health issues until such time
health and safety, if the existence of danger is sufficiently as the Community, acting through its institutions, pro-
321
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
duces a harmonising measure, such as a directive or regu- reached the clear conclusion that art 130r does not im-
lations to give effect to the Community policy on the pose an obligation upon the Secretary of State to con-
environment, which by that time will have been formu- sider his duties under the 1989 Act in the light of the
lated. Mr. Richards expressly associated himself with Mr. precautionary principle. It follows that the applicants have
Newman’s submissions on this point. This proposition failed to show any ground upon which the Secretary of
appears to me to be correct. It makes sense of the rather State’s refusal to issue regulations may be impugned. It
difficult language of art 3b and it is consistent with the will not therefore be necessary to consider any form of
Secretary of State’s other submissions which I have al- relief.
ready indicated I regard as being well-founded.
FARQUHARSON I.J.: I agree and, for the reasons given
For the several reasons which I have outlined, I have in the judgement just delivered, this motion is dismissed.
322
PLD 1994 SUPREME COURT 693
PRESENT: NASIM HASAN SHAH, C.J.,
SALEEM AKHTAR AND MANZOOR HUSSAIN SIAL, JJ
MS. SHEHLA ZIA AND OTHERS — PETITIONERS
v.
WAPDA — RESPONDENT
HUMAN RIGHTS CASE NO. 15-K OF 1992,
HEARD ON 12 FEBRUARY, 1994.
(Environmental pollution — Installation of Grid Station/cutting of trees)
(a) Constitution of Pakistan (1973) —- progress and prosperity of the country and if there were
threat of serious damage, effective measures should be
— Arts. 184(3), 9 & 14 — Public interest litigation — taken to control it and it should not be postponed merely
Human rights — Apprehension of citizens of the area on the ground that the scientific research and studies were
against construction of grid station by authority — Su- uncertain and not conclusive — With the consent of
preme Court, on receipt of letter from citizens in that both the parties Court appointed Commission to exam-
respect, found that the letter raised two questions namely ine the plan and the proposals/schemes of the Authority
whether any Government agency had a right to endan- in the light of complaint made by the citizens and sub-
ger the life of citizens by its actions without the latter’s mit its report and if necessary to suggest any alteration
consent and whether zoning laws vest rights in citizens or addition which may be economically possible for con-
which would not be withdrawn or altered without the struction and location of the grid station — Supreme
citizen’s consent — Citizens, under Art.9 of the Consti- Court further directed that Government should establish
tution of Pakistan were entitled to protection of law from an Authority or Commission manned by internationally
being exposed to hazards of electro magnetic field or known and recognized scientists having no bias and
any other such hazards which may be due to installation prejudice, to be members of the Commission whose opin-
and construction of any grid station, any factory, power ion or permission should be obtained before any new
station or such like installations — Article 184 of the grid station was allowed to be constructed — Author-
Constitution, therefore, could be invoked because a large ity, therefore, was directed by the Supreme Court that in
number of citizens throughout the country could not make future, it would issue public notice in newspapers, radio
such representation and may not like to make it due to and television inviting objections and finalise the plan
ignorance, poverty and disability — Considering the after considering the objections, if any, by affording pub-
gravity of the matter which could involve and affect the lic hearing to the persons filing objections — Such pro-
life and health of the citizens at large, notice was issued cedure was directed to be adopted and continued till such
by Supreme Court to the Authority — Trend of opinion time that the Government constituted any Commission
of scientists and scholars was that likelihood of adverse or Authority as directed by the Court.
effects of electromagnetic fields on human health could
not be ruled out — Subject being highly technical, Su- In the present case, citizens having apprehension against
preme Court declined to give definite finding particu- construction of a grid station in residential area sent a
larly when the experts and technical evidence produced letter to the Supreme Court for consideration as a hu-
was inconclusive — Supreme Court observed that un- man rights case raising two questions; namely, whether
der such circumstances the balance should be struck be- any Government agency has a right to endanger the life
tween the rights of the citizens and also the plans which of citizens by its actions without the latter’s consent; and
were executed by the Authority for the welfare, economic secondly, whether zoning laws vest rights in citizens
323
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
which cannot be withdrawn or altered without the citi- It is reasonable to take preventive and precautionary
zens’ consent. Considering the gravity of the matter measures straightaway instead of maintaining the status
which may involve and affect the life and health of the quo because there is no conclusive findings on the effect
citizens at large, notice was issued to the Authority. of electromagnetic fields on human life. One should not
wait for conclusive finding as it may take ages to find it
So far no definite conclusions have been drawn by the out and, therefore, measures should be taken to avert any
scientists and scholars, but the trend is in support of the possible danger and for that reason one should not go to
fact that there may be likelihood of adverse effects of scrap the entire scheme but could make such adjustments,
electromagnetic fields on human health. It is for this alterations or additions which may ensure safety and se-
reason that in all the developed countries special care is curity or at least minimise the possible hazards.
being taken to establish organizations for carrying on
further research on the subject. The studies are, there- The issue raised involves the welfare and safety of the
fore, not certain but internationally there seems to be a citizens at large because the network of high tension wires
consensus that the lurking danger which in an indefinite is spread throughout the country. One cannot ignore that
manner has been found in individual incidents and stud- energy is essential for present-day life, industry, com-
ies cannot be ignored. merce and day-to-day affairs. The more energy is pro-
duced and distributed, the more progress and economic
In the present-day controversies where every day new development become possible. Therefore, a method
avenues are opened, researches are made and new should be devised to strike balance between economic
progress is being reported in the electrical fields, it would progress and prosperity and to minimise possible haz-
be advisable for Authority to employ better resources ards. In fact a policy of sustainable development should
and personnel engaged in research and study to keep be adopted. It will thus require a deep study into the
themselves upto-date in scientific and technical knowl- planning and the methods adopted by Authority for con-
edge and adopt all such measures which are necessary struction of the grid station. Certain modes can be
for safety from adverse effects of magnetic and electri- adopted by which high tension frequency can be de-
cal fields. creased. This is purely scientific approach which has to
be dealt with and decided by the technical and scientific
There is a state of uncertainty and in such a situation the persons involved in it. It is for this reason that both the
authorities should observe the rules of prudence and pre- parties have agreed that NESPAK should be appointed
caution. The rule of prudence is to adopt such measure as a Commissioner to examine the plan and the propos-
which may avert the so-called danger, if it occurs. The als/schemes of Authority in the light of the complaint
rule of precautionary policy is to first consider the wel- made by the citizens and submit its report and if neces-
fare and safety of the human beings and the environ- sary to suggest any alteration or addition which may be
ment and then to pick up a policy and execute the plan economically possible for constructing a grid station. The
which is more suited to obviate the possible danger or location should also be examined and report submitted
make such alternate precautionary measures which may at the earliest possible time.
ensure safety. To stick to a particular plan on the basis
of old studies or inclusive research cannot be said to be a In all the developed countries great importance has been
policy of prudence and precaution. given to energy production. Pakistan’s need is greater
as it is bound to affect the economic development, but in
It is highly technical subject upon which the Court de- the quest of economic development one has to adopt such
clined to give a definite finding particularly when the measures which may not create hazards to life, destroy
experts and the technical evidence produced is incon- the environment and pollute the atmosphere.
clusive. In these circumstances the balance should be
struck between the rights of the citizens and also the plan While making such a plan, no public hearing is given to
which are executed by the power authorities for welfare, the citizens nor any opportunity is afforded to the resi-
economic progress and prosperity of the country. dents who are likely to be affected by the high tension
wires running near their locality. It is only a one-sided
If there are threats of serious danger, effective measures affair with the Authority which prepares and executes is
should be taken to control it and it should not be post- plan. Although the Authority and the Government may
poned merely on the ground that scientific research and have been keeping in mind the likely dangers to the citi-
studies are uncertain and not conclusive. Prevention is zens’ health and property, no due importance is given to
better than cure. Pakistan is a developing country. It seeking opinion or objections from the residents of the
cannot afford the researches and studies made in devel- locality where the grid station is constructed or from
oped countries on scientific problems. However, the re- where the high tension wires run.
searches and their conclusions with reference to specific
cases are available, the information and knowledge is at It would, therefore, be proper for the Government to es-
hand and Pakistan should take benefit out of it. tablish an Authority or Commission manned by interna-
324
SHEHLA ZIA V WAPDA
tionally known and recognized scientists having no bias damental right to preserve and protect the dignity of man
and prejudice to be members of such Commission whose under Article 14 is unparalleled and could be found only
opinion or permission should be obtained before any new in few Constitutions of the world.
grid station is allowed to be constructed. Such Commis-
sion should also examine the existing grid stations and Where life of citizens is degraded, the quality of life is
the distribution lines from the point of view of health adversely affected and health hazards are created affect-
hazards and environmental pollution. If such a step is ing a large number of people the Court in exercise of its
taken by the Government in time, much of the problem jurisdiction under Article 184 (3) of the Constitution may
in future can be avoided. grant relief to the extent of stopping the functioning of
units which create pollution and environmental degra-
Article 9 of the Constitution provides that no person shall dation.
be deprived of life or liberty save in accordance with
law. The word “life” is very significant as it covers all In these circumstances, before passing any final order,
facts of human existence. the word “life” has not been with the consent of both the parties a Court appointed
defined in the Constitution but it does not mean nor can Commissioner is to examine and study the scheme, plan-
be restricted only to the vegetative or animal life or mere ning device and technique employed by Authority and
existence from conception to death. Life includes all report whether there was any likelihood of any hazard or
such amenities and facilities which a person born in a adverse effect on health of the residents of the locality.
free country is entitled to enjoy with dignity, legally and Commissioner might also suggest variation in the plan
constitutionally. A person is entitled to protection of law for minimizing the alleged danger. Authority was to sub-
from being exposed to hazards of electromagnetic fields mit all the plans, scheme and relevant information to the
or any other such hazards which may be due to installa- Commissioner. The citizens will be at liberty to send to
tion and construction of any grid station, any factory, the Commissioner necessary documents and material as
power station or such like installations. Under the com- they desire. These documents were to reach Commis-
mon law a person whose right of easement, property or sioner within two weeks. Commissioner was authorised
health is adversely affected by any act of omission or to call for such documents of information from Author-
commission of a third person in the neighbourhood or at ity and the citizens which in its opinion was necessary to
a far-off place, is entitled to seek an injunction and also complete its report. The report should be submitted
claim damages but the Constitutional rights are higher within four weeks from the receipt of the order after
than the legal rights conferred by law be it municipal which further proceedings were to be taken. Authority
law or the common law. Such a danger as depicted, the was further directed that in future prior to installing or
possibility of which cannot be excluded, is bound to af- constructing any grid station and/or transmission line, it
fect a large number of people who may suffer from it would issue public notice in newspapers, radio and tel-
unknowingly because of lack of awareness, information evision inviting objections and to finalise the plan after
and education and also because such sufferance is silent considering the objections, if any, by affording public
and fatal and most of the people who would be residing hearing to the persons filing objections. This procedure
near, under or at a dangerous distance of the grid station shall be adopted and continued by Authority till such
or such installation do not know that they are facing any time as the Government constitutes any Commission or
risk or are likely to suffer by such risk. Therefore, Arti- Authority as suggested.
cle 184 can be invoked because a large number of citi-
zens throughout the country cannot make such represen- The News International, September 18, 1991 entitled
tation and may not like to make it due to ignorance, pov- ‘Technotalk’ by Roger Coghill; Newsweek, July 10,
erty and disability. Only some conscientious citizens 1989; Magazine ‘Nature’, Vol. 349 entitled ‘Killing
aware of their rights and the possibility of danger come Field’, 14th February, 1991 entitled ‘E.M.F. — Cancer
forward. Link Still Murky, Electronics World & Wireless World,
February 1990, American Journal of Epidemiology,
The word “life” in terms of Article 9 of the Constitution Vol.138, p.467; Villanora Law Review, Vol.36, p.129 in
is so wide that the danger and encroachment complained 1991; Electromagnetic (EM) Radiation - A Threat to
of would impinge on the fundamental rights of a citizen. Human Health by Brig. (Rtd.) Muhammad Yasin; Ox-
In this view of the matter the petition under Article 184 ford Dictionary; Black’s Law Dictionary; Kharak Singh
(3) of the Constitution of Pakistan, 1973 is maintainable. v. State of U.P. AIR 1963 SC 1295; Munn v Illinois (1876)
94 US 11(..) Francis Corali v. Union Territory of Delhi
The word “life” in the Constitution has not been used in AIR 1981 SC 746; Olga Tellis and Others v. Bombay
a limited manner. A wide meaning should be given to Municipal Corporation AIR 1986 SC 847; Rural Litiga-
enable a man not only to sustain life but to enjoy it. tion and Entitlement Kendra and others v. State of U.P.
and others AIR 1985 SC 652; AIR 1987 SC 359, AIR
Article 14 provides that the dignity of man and subject 1987 SC 2426; AIR 1988 SC 2187; AIR 1989 SC 594;
to law the privacy of home shall be inviolable. The fun- Shri Sachidanand Pandey and another v. The State of
325
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
West Bengal and others AIR 1987 SC 1109; M.C. Mehta to law the privacy of home shall be inviolable. The fun-
v. Union of India AIR 1988 SC 1115 and M.C. Mehta v. damental right to preserve and protect the dignity of man
Union of India AIR 1988 SC 1037 ref. under Article 14 is unparalleled and could be found only
in few Constitutions of the world.
(b) International agreement—-
(e) Constitution of Pakistan (1973)—-
——Value——International agreement between the na-
tions if signed by any country is always subject to ratifi- —Art. 184(3)—Public interest litigation—Pollution and
cation, but same can be enforced as a law only when environmental degradation—Where life of citizens is
legislation is made by the country though its Legisla- degraded, the quality of life is adversely affected and
ture—— Without framing a law in terms of the interna- health hazards are created affecting a large number of
tional agreement the covenants of such agreement can- people. Supreme Court in exercise of its jurisdiction
not be implemented as a law nor do they bind down any under Art. 184(3) of the Constitution of Pakistan may
party—— Such agreement, however, has a persuasive grant relief to the extent of stopping the functioning of
value and commands respect. such units which create pollution and environmental deg-
radation.
(c) Constitution of Pakistan (1973)——
Dr. Parvez Hasan for Petitioners.
——Art.9—— Word “life” in Art. 9 of the Constitution
covers all facets of human existence. Tarik Malik, Project Director, WAPDA for Respondent.
Article 9 of the Constitution provides that no person shall Date of hearing: 12 February 1994.
be deprived of life or liberty save in accordance with the
law. The word “life” is very significant as it covers all
facets of human existence. The word “life” has not been ORDER
defined in the Constitution but it does not mean nor can
it be restricted only to the vegetative or animal life or SALEEM AKHTAR, J.—Four residents of Street No.35,
mere existence from conception to death. Life includes F-6/1, F-6/1, Islamabad. A letter to this effect was writ-
all such amenities and facilities which a person born in a ten to the Chairman on 15-1-1992 conveying the com-
free country is entitled to enjoy with dignity legally and plaint and apprehensions of the residents of the area in
constitutionally. respect of construction of a grid station allegedly located
in the green-belt of a residential locality. They pointed
The word ‘life’ in the Constitution has not been used in a out that the electromagnetic field by the presence of the
limited manner. A wide meaning should be given to en- high voltage transmission lines at the grid station would
able a man not only to sustain life but to enjoy it. pose a serious health hazard to the residents of the area
particularly the children, the infirm and the Dhobi-ghat
Oxford Dictionary; Black’s Law Dictionary, Kharak families that live in the immediate vicinity. The pres-
Singh v. State of U.P. AIR 1963 SC 1295; Munn v. Illi- ence of electrical installations and transmission lines
nois (1876) 94 US 113 at page 142; Francis Corali v. would also be highly dangerous to the citizens particu-
Union Territory of Delhi AIR 1981 SC 746; Olga Tellis larly the children who play outside in the area. It would
and others v. Bombay Municipal Corporation AIR 1986 damage the greenbelt and affect the environment. It was
SC 180; State of Himachal Pradesh and another v. Umed also alleged that it violates the principles of planning in
Ram Sharma and others AIR 1986 SC 847; Rural Litiga- Islamabad where the green belts are considered an es-
tion and Entitlement Kendra and others v. State of U.P. sential component of the city for environmental and aes-
and others AIR 1985 SC 652; AIR 1987 SC 359 AIR thetic reasons. They also referred to the various attempts
1987 SC 2426; AIR 1988 SC 2187; AIR 1989 SC 594; made by them from July 1991 protesting about the con-
Shri Sachidanand Pandey and another v. The State of struction of the grid station, but no satisfactory step had
West Bengal and others AIR 1987 SC 1109; M.C. Mehta been taken. This letter was sent to this Court by Dr.
v. Union of India AIR 1988 SC 1115 and M.C. Mehta v. Tariq Banuri of LUCN for consideration as a human
Union of India AIR 1988 SC 1037 ref. rights case raising two questions; namely, whether any
Government agency has a right to endanger the life of
(d) Constitution of Pakistan (1973)— citizens by its actions without the latter’s consent; and
secondly, whether zoning laws vest rights in citizens
—Art. 14—Fundamental right to preserve and protect which cannot be withdrawn or altered without the citi-
the dignity of man under Art. 14 is unparalleled and could zens’ consent. Considering the gravity of the matter
be found only in few Constitutions of the world. which may involve and affect the life and health of the
citizens at large, notice was issued to the respondents
Article 14 provides that the dignity of man and subject who appeared and explained that the site of grid station
326
SHEHLA ZIA V WAPDA
was not designated as open space/green area as stated in tion 8.11 and 8.13 of Transmission Line Reference
the layout plan of the area. It was further stated that the Book of Electric and Magnetic fields on people and
site had been earmarked in an incidental space which animals are enclosed which indicate that there is no
was previously left unutilised along the bank of nallah restriction on permissible duration of working if the
and was not designated as open space or green area. It electric field intensity is up to 5KV/m whereas in
was about 6-10 feet in depression from the houses lo- the case under consideration the elect field inten-
cated in the vicinity of the grid station site. The grid sity would certainly be lesser than 0.KV/m which
station site starts at least 40 feet away from the residences value as indicated in the said extract is for a loca-
in the area and construction of grid station does not ob- tion at a distance of 20m from a 525 KV Line.
struct the view of the residents. It was further stated that
the fear of health hazard due to vicinity of high voltage The nearest present live conductor is of only 132KV and
of 132 K.V. transmission lines and grid station is totally that too would be at a distance of more than 20m from
unfounded. Similar 132 KV grid stations have been es- the nearest house’s boundary wall as shown in the en-
tablished in the densely populated area of Rawalpindi, closed map. This clearly shows that the nearby houses
Lahore, Multan and Faisalabad, but no such health haz- fall in a quite safe zone. As regards the magnetic fields,
ard has been reported. It was also claimed that not a the intensity of the magnetic field at ground level close
single complaint has been received even from the peo- to transmission line varies from 0.1 to 0.5 gauss which
ple working in these grid stations and living right in the values are less than those in industrial environments es-
premises of the grid stations. The installations are made pecially in proximity to low voltage conductors carrying
in such a way that the safety of personnel and property is currents as mentioned in the above extracts. In view of
ensured. It was further stated that electromagnetic ef- the above details, there should be no concern about the
fects of extra high voltage lines of voltage above 5000 health of residents of nearby houses.
KV on the human and animal lives and vegetation is under
study in the developed countries, but the reports of re- (e) The apprehension that the grid station would gen-
sults of such studies are controversial. In support of the erate and transmit excessive heat to houses is un-
contentions, CDA submitted extract from the opinion of founded as the main equipment i.e. power transform-
Dr. M. Mohsin Mubarak, Director, Health Services, ers are properly cooled by circulation of oil inside
which reads as follows:- transformer tanks and by means of cooling fans”
“The fears of the residents about the effects of high These opinion of the WAPDA and CDA are based on
voltage transmission lines are also not considered Transmission Lines. Reference Book, 345 KV and
dangerous for the nearby residents. Even a small elec- above/2nd Edition, extract of which had been filed and
tric point with 220 volts current or a sui Gas installa- relevant parts of which are reproduced as follows:-
tion in the kitchen can prove to be extremely danger-
ous if specific precautions are not undertaken and
“Although health complaints by substation workers
maintained. The high tension wires are not likely to
in the USSR were reported (40.41), medical exami-
harm the residents if due protection criteria are prop-
nation of linemen in the USA (38.39), in Sweden (19)
erly planned and executed. The concept of danger-
and in Canada (56.58), failed to find health problems
ous and offensive trades and civil defence is not that
ascribable to electric fields. As a result of unclear
the candle should not be lit. A candle must be lit to
findings and research in progress, no rules for elec-
remove darkness and make the things more produc-
tric-field intensity inside and outside the transmis-
tive but care must be also be taken not to let the can-
sion corridor have been universally established. In
dle burn everything around.”
some cases, design rules have been established to
The comments of Government of Pakistan, Ministry of allow construction of EHV transmission lines to pro-
Water and Power recommending the construction of grid ceed with the maximum possible guaranteed protec-
station were also filed in which the following points were tion of people from possible health risks.
noted on the effect of electrical light and wiring on health
of human beings;— Many studies of magnetic-field effects on laboratory
items have been performed. A good general review
(c) Although the studies of effects of electric lines and and discussion is offered by Sheppard and Eisenbud
wiring on the health of human beings are being car- (59). Magnetic fields have been reported to affect
blood composition, growth, behaviour, immune sys-
ried out by different agencies/institutions of the
tems and neural functions. However, at present there
world, there are no established and conclusive find- is a lack of conclusive evidence, and a very confus-
ings about any serious effects of electric lines/wir- ing picture results from the wide variation in field
ing on the health of human beings. strengths, frequency, exposure durations used in dif-
ferent studies.”
(d) The effects of electricity can be considered on ac-
count of its fields namely the electric field and the WAPDA also submitted extracts from A.B.B. literature
magnetic field and in this regard, extracts of sec- regarding insulation and coordination/standard clear-
327
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
ances data based on LEC specification in which mini- ologist John Peters from the University of Southern Cali-
mum clearance for 500 KV equipments and installation fornia, who released his preliminary results from a case
has been given 1,100 ft. and 1,300 ft. for phase-to-phase control study of 232 young leukaemia victims. The re-
air clearance and phase-to-phase earth air clearance. sults implied that leukaemia reasons are co-related to
electromagnetic field (EMF) exposures and that they are
2. The petitioners were also asked to furnish material in not dependent on how exposure is estimated.
support of their claim. They have filed news clippings
from magazines, research articles, and opinion of scien- 4. In an article from Electronics World & Wireless
tists to show that electromagnetic radiation is the wave World, February 1990 entitled ‘Killing Fields’, the au-
produced by magnetism of an electrical current and that thor has discussed and produced a large number of case
electromagnetic fields can affect human beings. The first studies from which it was observed that at least there
item is a clipping from the magazine “The News Inter- was a two-fold increase in adult leukaemia link to fields
national, September 18, 1991, entitled “Technotalk”. It from wires near human beings. It was further observed
refers to a book ‘Electropollution — How to protect your- that if one accepts a casual link to power line electro-
self against it’ by Roger Coghill. It has been observed magnetic fields as much as 10-15% of all childhood can-
that “now researchers are asking whether it is more than cer cases might be attributed to such fields. There has
coincidence that the increase in diseases like cancer, ME, been a growing concern and research in the US and seven
multiple sclerosis, hyperactivity in children, allergies and American States have adopted rights of way, but no such
even AIDS have occurred alongside enormous growth step has been taken in UK. The case studies also showed
in the production and use of electricity”. It further states that:-
that “the first warning sign came from the USA in 1979
when Dr. Nancy Weheimer and Dr. Ed Leeper found that “Among recent residential studies, GP Dr. Stephen
children living next to overhead electricity lines were Perry published correlations between the magnetic-
more likely to develop leukaemia. Since then, further field exposure of people living in multi-story blocks
studies have shown links with brain tumours, depression (or nine storeys or more). Wolverhamption with the
incidence of heart disease and depression. Magnetic
and suicide”.
field strengths measured in all 43 blocks with a sing
rising cable showed very significantly higher read-
One US researcher found that electrical utility workers ings (p 0.0002) in those apartments categorised as
were 13 times more likely to develop brain tumour than `near’ the cable, averaging 0.315 T (highest: 0.377
the rest of the population. A Midlands doctor discov- T) against 0.161 T (lowest: 0.148 T) in the `distant’
ered a higher than average rate of depression and suicide apartments. In line with these measures, significantly
in people living near electric power cables. more `.... myocardial infraction, hypertension,
isshaemic heart disease and depression....’ was re-
Photo copy of an article published in Newsweek, July ported in those living near the cable.”
10, 1989, entitled ‘An Electromagnetic Storm’ has been Other articles in the same magazine were entitled “Kill-
filed. In this article the apprehensions and problems ing Fields, the Epidemiological Evidence” and “Killing
considered by the scientists have been discussed and ref- Fields, the Politics” in which the suggestion was made
erence has been made to the researchers in this field in that “until results of this research become available more
which, finally it was concluded as follows:- a moratorium should be placed on all new buildings or
routing of power lines which causes 50 Hz fields in
The question is whether we know enough to embark houses to exceed every cautiously set limit”.
on a complete overhaul of the electronic environment.
Avoiding electric blankets and sitting at arm’s length In an information sent by Mark Chernaik, Environmen-
from one’s VDT screen (their fields fall off sharply tal Law US to Brig. (Rtd.) Muhammad Yasin, Projects
after about two feet) seem only prudent. But drastic
Coordinator, Sustainable Development Policy Institute
steps to reduce people’s involuntary exposures might
prove futile. For while research clearly demonstrates (SDPI), it is stated that “when electric current passes
that electromagnetic fields can affect such process through high voltage transmission lines (HVTLs), it pro-
as bone growth, communication among brain cells, duces electric and magnetic fields. Although both can
even the activity of white blood cells, it also shows affect biological systems, the greatest concern is the
that weak fields sometimes have greater effects than health impacts of magnetic fields. A magnetic field can
strong ones. Only through painstaking study will any- be either static or fluctuating. Magnetic fields from
one begin to know where the real danger lies. On HVTLs fluctuates because the electric currents within
one point, at least, Brodeur and many of those he HVLTs are alternating currents (AC) which reverse di-
criticizes seem to agree: we’re not quite sure what
rection 50 to 60 times per second (50 to 60 Hz). Mag-
we’re up against, and we need urgently to find out.”
netic fields pass nearly unimpeded through building
3. An article published in the magazine ‘Nature’, Vol- materials and earth”. It refers to four recent epidemio-
ume 349, 14 February 1991 entitled ‘EMF - Cancer logical studies which show that the people exposed to
Linked Still Murky’ refers to a study made by epidemi- relatively strong static and fluctuating magnetic fields
328
SHEHLA ZIA V WAPDA
have higher rates of leukaemia as compared to general (c) Even in the latter countries, until such time as the
population. It gives the figures that the rate of leukae- matter gets resolved, the profession is likely to place
mia was higher in over 1,70,000 children who lived within greater weight on the critical and more recent stud-
300 meters of HVTLs in Sweden from 1960-85. Chil- ies than would be warranted by their frequency or
dren who were exposed to fluctuating magnetic fields number. In other words, a single study showing
greater than 0.20 Ut were 2.7 times more likely to have additional harmful consequences has more weight
contracted leukaemia and children who were exposed to than hundreds of studies that argue that there is no
greater than 0.3 Ut were 3.08 times more likely to have change.”
contracted leukaemia than other children (Reference:
Feychting, M. & Anlbon. A (October 1993) “Magnetic According to him precautionary principles should be
Fields and Cancer in Children Resideing in Swedish adopted and there should be a balance in existing situa-
Higher Voltage Power Lines”. American Journal of Epi- tion, developments and the environmental hazards.
demiology, Bol.138, p.467). It also refers to an article
“Childhood Cancer in Relation to Modified Residential 6. The petitioners have also relied on an article enti-
Wire Code Environmental Health Perspectives, Vol.10, tled “Regulatory and Judicial Responses to the Possibil-
pp.76-80 in which studies were carried out in respect of ity of Biological Hazards from Electromagnetic Fields
cancer in children living in the Danver area of US and it generated by Power Lines” by Sherry Young, Assistant
was reported that children living in homes within 20 Professor of Law, Claude W. Pettit, College of Law Ohio
meters of HVTLs or primary distribution lines were 1.9 Northern University, B.A. Michigan State University,
times more likely to have contracted cancer in general Harvard Law School published in Villanova Law Review,
and 2.8 times more likely to have contracted leukaemia Vol.36, p.129 in 1991. It is an exhaustive and informa-
in particular than children living in homes with relatively tive article which deals with the current state of knowl-
moderate or low exposure to magnetic fields. Likewise edge about the biological effect of exposure to electro-
reference has been made to the study relating to leukae- magnetic fields, the responses of the legal system to the
mia in workers who maintain and repair telephone lines possibility of biological hazards, evaluations and the pro-
in US and the rate of cancer in Norwegian electrical posals for regulatory response. It refers to various stud-
workers who were exposed to magnetic fields. It also ies made in USA, Sweden and Canada about ELF expo-
states that power company challenged the existence of sure and cancer in children and adults. After referring to
link between leukaemia and exposure to magnetic fields the various studies and the results arrived at the author
on the basis that there is no biological mechanism which has summed up as follows:-
can explain the link. It has been stated that “there is a
plausible (but still unproven) biological explanation for “While the implications of these studies justify addi-
the link between leukaemia and exposure to magnetic tional research, it would be both difficult and futule
fields”. It also suggests methods to reduce magnetic to base any significant regulation of electric trans-
fields from HVTLs. mission and distribution systems on rather limited
data currently available. At best, various experiments
have demonstrated that particular cells or animals
5. Dr. Tariq Banuri has also made a statement and given have shown particular responses to exposure to ELF
his opinion as an expert on Environmental Economics fields of particular frequencies and intensities for
and a student of Social Management. According to him:- specific durations. The mechanism by which those
effects occur are not known. It is also unknown
“(a) The earlier consensus on the limited degree of the whether the changes that have been observed are in
harmful effects of radiation does not exist. While fact harmful to the organisms involved, whether they
at this point the expert evidence is not conclusive, would be harmful if they occurred in humans, or
regarding its impact the burden of proof has shifted whether exposure to ELF fields results in numerous
biological effects that in fact cancels each other out.
from individuals to the organization. As a result,
Additionally, it is unknown whether humans or other
courts in the US have recommended more stringent animals are able to adapt to exposure, either imme-
safety standards. diately or after some threshold period of adjustment.
It is known that in some of the experiments demon-
(b) Given the absence of proper safeguards and stand- strating biological effects, the effects disappeared
ards in Pakistan’s research, it is unlikely that stud- upon increased, as well as decreased, exposure.
ies done in Pakistan would help decide the issue. Therefore, it is impossible to conclude that any given
Perforce, we would have to rely on the results of level of exposure will be harmless, no matter how
cross-country studies, or on those of studies con- precisely its frequency, intensity and duration are
regulated, nor can it be established that any given
ducted in industrialised countries. We should not
level of exposure is definitely harmful. Consequently,
regard the results in other countries as inappropri- it is impossible at this time to prescribe alterations in
ate for our purposes. These are the only results we electric transmission and distribution systems that are
are likely to be able to use in the foreseeable future. likely to significantly reduce the risks, if any, of ex-
posure to ELF fields.
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
At present, the scientific evidence regarding the possi- fields which have extremely high intensity compared
bility of adverse biological effects from exposure to with naturally occurring fields. This is particularly
power-frequency fields, as well as the possibility of re- the case with sources operating at power frequencies
ducing or eliminating such effects, is inconclusive. The of 50 or 60 Hz where magnetic fields of very high
magnitude compared with the natural are common.
remaining question is how the legal system, including
Any one near the transmission lines is, therefore,
both the judiciary and the various regulatory agencies, exposed to excessive magnetic field.
should respond to this scientific uncertainty.”
Magnetic fields give rise to induced electric fields
The research project known as the New York Power Line and currents which in turn interact with the blood
Projects (HYPLP) was established to investigate inde- flow as well as living tissues. Such tissues which are
pendently and without any bias on several projects par- vulnerable to electrical excitation e.g. visio-sensory
stimulation that generate magneto-phosphenes are
ticularly for considering the implication of Wythmer and
likely to be affected on long term exposure and un-
Leeper study which suggested association between prox- der high intensity of the field.
imity to power lines and childhood leukaemia. The au-
thor has summarised the conclusion of this project as So far there is no direct evidence of effects of expo-
follows:- sure to magnetic fields but there are indications that
an excess in the incidence of cancer among children
“The panel concluded that they had documented bio- and adults is associated with very weak (0.1 to 1 mT)
logical effects of electric and magnetic fields and that 50 or 60 Kg magnetic flux densities such as those
several of those findings were worthy of further con- directly under high tension wires, welding acres, in-
sideration because of their possible implications for duction heaters and a number of home appliances.
human health. The panel was not able, however, to The ill-effects have just started surfacing up because
identify any adverse health effects. Although the rep- of availability of some health facilities and institu-
lication of the Wyrthemer and Leeper study basically tions where ailments of many kinds are being re-
confirmed the study’s finding of an association be- ported. In Pakistan these effects may easily be at-
tween power line configurations and childhood can- tributed to anything other than scientific. Instead of
cer, the panel was unable to offer any recommenda- waiting for abnormal cases to be reported in our situ-
tion based on this and other epidemiological studies ation it is perhaps imperative that we go for sustain-
because of methodological difficulties with quanti- able development and discourage installation of trans-
fying magnetic field exposure levels and the lack of mission lines over the residential areas anywhere.”
any established casual relationship between weak The opinion of Dr. Muhammad Hanif, Officer Incharge,
magnetic fields and cancer.” Finally the panel rec-
Environmental. Research and Pollution Control Section
ommended further research in the following areas:
(1) The possible association between cancer and ex- of Pakistan Council of Scientific and Industrial Research,
posure to magnetic fields, and effects of exposure on Lahore dated 10-7-1991, after referring to various stud-
learning ability. (2) The possible existence of thresh- ies and research made in USA, concluded as follows:-
olds for biological effects; and (3) methods of power
delivery for use that would reduce magnetic fields.” “According to my conclusion, I draw from the litera-
ture so far read by me, there is going to be proved ill-
After this report a staff task force was appointed by the health effects on human beings associated especially
Chairman of the New York Public Service Commission with the high voltage transmission. However, for a
while setting aside the question of the ill-health ef-
to evaluate the report of NYPLP and develop recommen-
fects, of high energy concentrated electrical waves,
dations for consideration by it. The task force noted that there remains a constant concern about the safety
“the researchers had not determined whether the effects factor. The high structures especially to be installed
that had been established would persist at lower field for the transmission of electricity and the high volt-
intensities or whether there was threshold below which age current passing though these transmission lines
the effects disappeared.” “Nonetheless the task force continue to pose constant danger to the people and
found that the results were disturbing enough to require the property of the area under their direct hit in case,
additional epidemiological studies preferably in New these structures collapse due to any cause.”
York.” The recommendations made by NYPLP were A document research paper entitled Electromagnetic
endorsed by the task force. (EH) Radiation — A Threat to Human Health, by Brig.
(Rtd.) Muhammad Yasin of Sustain Development Policy
7. Dr. Mirza Arshad Ali Baig who was at that time Institute has also been relied upon by the petitioners. The
Director-General of Planning and Development and In- author has referred to some reported research conclu-
dustrialization of Pakistan Council of Scientific and In- sions as follows:-
dustrial Research to a query made by Dr. Tariq Banuri
has given his opinion as follows:- (i) The risk of dying from acute myliod leukaemia is
increased by 2.6 if you work in electrical occupa-
“The information that is so far available, with me sug- tion especially if you are a telecommunication en-
gests that transmission lines give rise to magnetic gineer or radio amature.
330
SHEHLA ZIA V WAPDA
(ii) Service personnel exposed to non-ionising radia- fields do not cause childhood leukaemia and adult can-
tion are seven times more than unexposed colleagues cer and in the presence of studies the subject requires
likely to develop cancer of the blood forming or- further research and the conclusions drawn earlier in fa-
gans and lymphatic tissues and are likely to develop vour of the power company are doubtful-safest course
thyroid tumours. seems to be to adopt a method by which danger, if any,
may be avoided. At this stage it is not possible to give a
(iii) 10 to 15 per cent. of all childhood cancer cases might definite finding on the claims of either side. There is a
be attributable for power frequency fields found in state of uncertainty and in such a situation the authori-
homes (23/115 V 50 - 60 Hz). The risk of child- ties should observe the rules of prudence and precau-
hood cancer more than double in homes where the tion. The rule of prudence is to adopt such measures
average 60 Hz magnetic field is over 300 MT.” which may avert the so-called danger, if it occurs. The
rule of precautionary policy is to first consider the wel-
He has also referred to studies in Sweden on effect of fare and safety of the human beings and the environ-
high tension power lines on the health of children and ment and then to pick up a policy and execute the plan
detected higher risk of leukaemia. This study also indi- which is more suited to obviate the possible dangers or
cated that prolonged exposure to electromagnetic fields make such alternate precautionary measures which may
has links of leukaemia in adults. His conclusion and ensure safety. To stick to a particular plan on the basis
recommendations are to create awareness, to adopt safety of old studies or inconclusive research cannot be said to
standards prescribed by developed countries and under- be a policy of prudence and precaution. There are in-
take studies and research. stances in American studies that the power authorities
have been asked to alter and mould their programme and
8. From the aforestated material produced on record planning in such a way that ehe intensity and the veloc-
which contains up to date studies and research it seems ity is kept at the lowest level. It is highly technical sub-
that so far no definite conclusions have been drawn by ject upon which the Court would not like to give a defi-
the scientists and scholars, but the trend is in support of nite finding particularly when the experts and the tech-
the fact that there may be likelihood of adverse effects nical evidence produced is inconclusive. In these cir-
of electromagnetic fields on human health. It is for this cumstances the balance should be struck between the
reason that in all the developed countries special care is rights of the citizens and also the plan which are executed
being taken to establish organizations for carrying on by the power authorities for welfare, economic progress
further research on the subject. The studies are, there- and prosperity of the country.
fore, not certain, but internationally there seems to be a
consensus that the lurking danger which in an indefinite 9. Dr. Parvez Hasan, learned counsel for the petition-
manner has been found in individual incidents and stud- ers contended that the Rio Declaration on Environment
ies cannot be ignored. WAPDA on the other hand insists and Development has recommended the precautionary
on executing the plan which according to it is completely approach contained in principle No. 15, which reads as
safe and risk free. The material placed by WAPDA is follows:-
based on studies carried out two decades back. The other
statement is based on their personal observation of their “Principle 15. —In order to protect the environment,
workers who are working in grid stations, and further, the precautionary approach shall be widely applied
that from the locality no such complaint has been made by States according to their capabilities. Where there
as in the present case. The research and opinion relied are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason
upon by WAPDA is not the latest one nor from authentic
for postponing cost-effective measures to prevent
sources because they are merely relying upon old opin- environmental degradation.”
ions.
The concern for protecting environment was first inter-
In the present-day controversies where every day new nationally recognised when the declaration of United
avenues are opened new researches are made and new Nations Conference on the Human Environment was
progress is being reported in the electrical fields, it would adopted at the Stockholm on 16-6-1972. Thereafter it
be advisable for WAPDA to employ better resources and had taken two decades to create awareness and consen-
personnel engaged in research and study to keep them- sus among the countries when in 1992 Rio Declaration
selves up-to-date in scientific and technical knowledge was adopted. Pakistan is a signatory to this declaration
and adopt all such measures which are necessary for and according to Dr. Parvez Hasan although it has not
safety from adverse effect of magnetic and electric fields. been ratified or enacted, the principle so adopted has its
On the other hand the materials placed by the petitioners own sanctity and it should be implemented, if not in let-
are the latest researches carried out to examine the mag- ter, at least in spirit. An international agreement between
netic fields ‘effect on health and also about the possible the nations if signed by any country is always subject to
dangers that may be caused to human beings. In the ratification, but it can be enforced as a law only when
absence of any definite conclusion that electromagnetic legislation is made by the country through its legisla-
331
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
ture. Without framing a law in terms of the international can be decreased. This is purely scientific approach
agreement the covenants of such agreement cannot be which has to be dealt with and decided by the technical
implemented as a law nor do they bind down any party. and scientific persons involved in it. It is for this reason
This is the legal position of such documents, but the fact that both the parties have agreed that NESPAK should
remains that they have a persuasive value and command be appointed as a Commissioner to examine the plan and
respect. The Rio Declaration is the product of hectic the proposals/schemes of WAPDA in the light of the com-
discussion among the leaders of the nations of the world plaint made by the petitioners and submit its report and
and it was after negotiations between the developed and if necessary to suggest any alteration or addition which
the developing countries that an almost consensus dec- may be economically possible for constructing a grid
laration had been sorted out. Environment is an interna- station. The location should also be examined and re-
tional problem having to frontiers creating transboundary port submitted at the earliest possible time.
effects. In this field every nation has to cooperate and
contribute and for this reason the Rio Declaration would 11. At this stage it may be pointed out that in all the
serve as a great binding force and to create discipline developed countries great importance has been given to
among the nations while dealing with environmental energy production. Our need is greater as it is bound to
problems. Coming back to the present subject, it would affect our economic development, but in the quest of
not be out of place to mention that Principle No. 15 en- economic development one has to adopt such measures
visages rule of precaution and prudence. According to it which may not create hazards to life, destroy the envi-
if there are threats of serious damage, effective meas- ronment and pollute the atmosphere. From the comments
ures should be taken to control it and it should not be filed by WAPDA it seems that they in consultation with
postponed merely on the ground that scientific research the Ministry of Water and Power have prepared a plan
and studies are uncertain and not conclusive. It enshrines for constructing grid station for distribution of power.
the principle that prevention is better than cure. It is a While making such a plan, no public hearing is given to
cautious approach to avert a catastrophe at the earliest the citizens nor any opportunity is afforded to the resi-
stage. Pakistan is a developing country. It cannot afford dents who are likely to be affected by the high tension
the researches and studies made in developed countries wires running near their locality. It is only a one-sided
on scientific problems particularly the subject at hand. affair with the Authority which prepares and executes its
However, the researches and their conclusions with ref- plan. Although WAPDA and the Government may have
erence to specific cases are available, the information been keeping in mind the likely dangers to the citizens
and knowledge is at hand and we should take benefit out health and property, no due importance is given to seek
of it. In this background if we consider the problem faced opinion or objections from the residents of the locality
by us in this case, it seems reasonable to take preventive where the grid station is constructed or from where the
and precautionary measures straightaway instead of high tension wires run. In USA Public Service Com-
maintaining status quo because there is no conclusive mission has been appointed for the purpose of regulat-
finding on the effect of electromagnetic fields on human ing and formulating the plans and permission for estab-
life. One should not wait for conclusive finding as it lishing a grid station. It hears objections and decides
may take ages to find it out and, therefore, measures them before giving permission to construct such a power
should be taken to avert any possible danger and for that station. No such procedure has been adopted in our coun-
reason one should not go to scrap the entire scheme but try. Being a developing country we will need many such
could make such adjustments, alterations or additions grid stations and lines for transmission of power. It
which may ensure safety and security or at least mini- would, therefore, be proper for the Government to es-
mise the possible hazards. tablish an Authority or Commission manned by interna-
tionally known and recognised scientists having no bias
10. The issue raised in this petition involves the wel- and prejudice to be members of such Commission whose
fare and safety of the citizens at large because the net- opinion or permission should be obtained before any new
work of high tension wires is spread throughout the coun- grid station is allowed to be constructed. Such Commis-
try. One cannot ignore that energy is essential for present- sion should also examine the existing grid stations and
day life, industry, commerce and day-to-pay affairs. The the distribution lines from the point of view of health
more energy is produced and distributed, the more hazards and environmental pollution. If such a step is
progress and economic development become possible. taken by the Government in time, much of the problem
Therefore, a method should be devised to strike balance in future can be avoided.
between economic progress and prosperity and to mini-
mise possible hazards. In fact a policy of sustainable 12. The learned counsel for the respondent has raised
development should be adopted. It will thus require a the objection that the facts of the case do not justify in-
deep study into the planning and the methods adopted tervention under Article 184 of the Constitution. The
by WAPDA for construction of the grid station. The stud- main thrust was that the grid station and the transmis-
ies in USA referred to above have suggested that certain sion line are being constructed after a proper study of
modes can be adopted by which high tension frequency the problem taking into consideration the risk factors,
332
SHEHLA ZIA V WAPDA
the economic factors and also necessity and requirement animals, humans, and plant or of an organised being, in
in a particular area. It is after due consideration that which its natural functions and motions are performed,
planning is made and is being executed according to rules. or in which its organs are capable of performing their
After taking such steps possibility of health hazards is functions. The interval between birth and death. The
ruled out and there is no question of affecting property sum of the forces by which death is resisted..... ‘Life’
and health of a number of citizens nor any fundamental protected by the Federation Constitution includes all
right is violated which may warrant interference under personal rights and their enjoyment of the faculties, ac-
Article 184. So far as the first part of the contention quiring useful knowledge, the right to marry, establish a
regarding health hazards is concerned, sufficient discus- home and bring up children, freedom of worship, con-
sion has been made in the earlier part of the judgement science, contract occupation, speech, assembly and
and need not be repeated. So far the fundamental rights press”.
are concerned, one has not to go too far to find the reply.
The Constitutional Law in America provides an exten-
Article 9 of the Constitution provides that no person shall sive and wide meaning to the word ‘life’ which includes
be deprived of life or liberty save in accordance with all such rights which are necessary and essential for lead-
law. The word ‘life’ is very significant as it covers all ing a free, proper, comfortable and clean life. The re-
facts of human existence. The word ‘life’ has not been quirement of acquiring knowledge, to establish home,
defined in the Constitution but it does not mean nor can the freedoms as contemplated by the Constitution, the
it be restricted only to the vegetative or animal life or personal rights and their enjoyment are nothing but part
mere existence from conception to death. Life includes of life. A person is entitled to enjoy his personal rights
all such amenities and facilities which a person born in a and to be protected from encroachments on such per-
free country is entitled to enjoy with dignity, legally and sonal rights, freedom and liberties. Any action taken
constitutionally. For the purposes of present controversy which may create hazards of life will be encroaching
suffice to say that a person is entitled to protection of the upon the personal rights of a citizen to enjoy the life ac-
law from being exposed to hazards of electromagnetic cording to law. In the present case this is the complaint
fields or any other such hazards which may be due to the petitioners have made. In our view the word ‘life’
installation and construction of any grid station, any fac- constitutionally is so wide that the danger and encroach-
tory, power station or such like installations. Under the ment complained of world impinge fundamental rights
common law a person whose right of easement, prop- of a citizen. In this view of the matter the petition is
erty or health is adversely affected by any act of omis- maintainable.
sion or commission of a third person in the neighbour-
hood or at a far off place, is entitled to seek an injunction 14. Dr. Parvez Hasan, learned counsel has referred to
and also claim damages, but the Constitutional rights are various judgements of the Indian Supreme Court in which
higher than the legal rights conferred by law be it mu- the term ‘life’ has been explained with reference to pub-
nicipal law or the common law. Such a danger as de- lic interest litigation. In Kharak Singh v. State of UP
picted, the possibility of which cannot be excluded, is (AIR 1963 SC 1295) for interpreting the word ‘life’ used
bound to affect a large number of people who may suf- in Article 21 of the Indian Constitution reliance was
fer from it unknowingly because of lack of awareness, placed on the judgement of Field, J. in Munn v. Illinois
information and education and also because such suffer- (1876) 94 US 113 at page 142 where it was observed
ance is silent and fatal and most of the people who would that ‘life’ means not merely the right to the continuance
be residing near, under or at a dangerous distance of the of a person’s animal existence but a right to the posses-
grid station or such installation do not know that they sion of each of his organs—his arms and legs etc.” In
are facing any risk or are likely to suffer by such risk. Francis Corali v. Union Territory of Delhi (AIR 1981
Therefore, Article 184 can be invoked because a large SC 746) Bhagvati, J. observed that right to life includes
number of citizens throughout the country cannot make right to live with human dignity and all that goes along
such representation and may not like to make it due to with it, namely the bare necessities of life such as ad-
ignorance, poverty and disability. Only some conscien- equate nutrition, clothing and shelter and facilities for
tious citizens aware of their rights and the possibility of reading and writing in diverse form”. Same view has
danger come forward and this has happened so in the been expressed in Olga Tellis and others v. Bombay
present case. Municipal corporation (AIR 1986 SC 180) and State of
Himachal Pradesh and another v. Umed Ram Sharma
13. According to Oxford dictionary, ‘life’ means “state and others (AIR 1986 SC 847). In the first case right to
of all functional activity and continual change peculiar life under the Constitution was held to mean right to live-
to organised matter and specially to the portion of it con- lihood. In the latter case the definition has been extended
stituting an animal or plant before death and animate to include the ‘quality of life’ and not mere physical ex-
existence.” istence. It was observed that ‘for residents of hilly ar-
eas, access to road is access to life itself’. Thus, apart
In Black’s Law Dictionary, ‘life’ means “that state of from the wide meaning given by US Courts, the Indian
333
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Supreme Court seems to give a wider meaning which In M.C. Mehta v. Union of India (AIR 1988 SC 1115)
includes the quality of life, adequate nutrition, clothing and M.C. Mehta v. Union of India (AIR 1988 SC 1037)
and shelter and cannot be restricted merely to physical the Court on petition filed by a citizen taking note of the
existence. The word ‘life’ in the Constitution has not fact that the municipal sewage and industrial effluents
been used in a limited manner. A wide meaning should from tanneries were being thrown in River Ganges
be given to enable a man not only to sustain life but to whereby it was completely polluted, the tanneries were
enjoy it. Under our Constitution, Article 14 provides closed down. These judgements go a long way to show
that the dignity of man and subject to law the privacy of that in cases where life of citizens is degraded, the qual-
home shall be inviolable. The fundamental right to pre- ity of life is adversely affected and health hazards are
serve and protect the dignity of man under Article 14 is created affecting a large number of people, the Court in
unparalleled and could be found only in few Constitu- exercise of its jurisdiction under Article 184(3) of the
tions of the world. The Constitution guarantees dignity Constitution may grant relief to the extent of stopping
of man and also right to ‘life’ under Article 9 and if both the functioning of factories which create pollution and
are read together, questions will arise whether a person environmental degradation.
can be said to have dignity of man if his right to life is
below bare necessity like without proper food, clothing, 16. In the problem at hand the likelihood of any hazard
shelter, education, health care, clean atmosphere and to life by magnetic field effect cannot be ignored. At the
unpolluted environment. Such questions will arise for same time the need for constructing grid stations which
consideration which can be dilated upon in more detail are necessary for industrial and economic development
in a proper proceeding involving such specific questions. cannot be lost sight of. From the material produced by
the parties it seems that while planning and deciding to
15. Dr. Parvez Hasan has also referred to several judge- construct the grid station WAPDA and the Government
ments of the Indian Supreme Court in which issues re- Department acted in a routine manner without taking into
lating to environment and ecological balance were raised consideration the latest research and planning in the field
and relief was granted as the industrial activity causing nor any thought seems to have been given to the hazards
pollution had degraded the quality of life. In Rural Liti- it may cause to human health. In these circumstances,
gation & Entitlement Kendra and others v. State of UP before passing any final order, with the consent of both
and others (AIR 1985 SC 652) mining operation carried the parties we appoint NESPAK as Commissioner to
out through blasting was stopped and directions were examine and study the scheme, planning, device and tech-
issued to regulate it. The same case came up for further nique employed by WAPDA and report whether there is
consideration and concern was shown for the preserva- any likelihood of any hazard or adverse effect on health
tion and protection of environment and ecology. How- of the residents of the locality. NESPAK may also sug-
ever, considering the defence need and for earning for- gest variation in the plan for minimizing the alleged dan-
eign exchange some queries were allowed to be oper- ger. WAPDA shall submit all the plans, scheme and rel-
ated in a limited manner subject to strict control and regu- evant information to NESPAK. The petitioners will be
lations. These judgements are reported in AIR 1987 SC at liberty to send NESPAK necessary documents and
359 and 2426 and AIR 1988 SC 2187 and AIR 1989 SC material as they desire. These documents should reach
594. In Shri Sachidanand Pandey and another v. The NESPAK within two weeks. NESPAK is authorised to
State of West Bengal and others (AIR 1987 SC 1109) call for such documents or information from WAPDA
part of land of zoological garden was given to Taj Group and the petitioners which in their opinion is necessary to
of Hotels to build a five-star hotel. This transaction was complete their report. The report should be submitted
challenged in the High Court without success. The ap- within four weeks from the receipt of the order after
peal was dismissed. Taking note of the fact that soci- which further proceeding shall be taken. WAPDA is fur-
ety’s interaction with nature is so extensive that “envi- ther directed that in future prior to installing or construct-
ronmental question has assumed proportion affecting all ing any grid station and/or transmission line, they would
humanity”, it was observed that:- issue public notice in newspapers, radio and television
inviting objections and to finalise the plan after consid-
“Obviously, if the Government is alive to the various ering the objections, if any, by affording public hearing
considerations requiring thought and deliberation and to the persons filing objections. This procedure shall be
has arrived at a conscious decision after taking them adopted and continued by WAPDA till such time the
into account, it may not be for this Court to interfere Government constitutes any commission or authority as
in the absence of mala fides. On the other hand, if
suggested above.
relevant considerations are not borne in mind and ir-
relevant considerations influence the decision, the
Court may interfere in order to prevent a likelihood
of prejudice to the public.”
334
LAND AND EVIRONMENT COURT OF NEW SOUTH WALES
GREENPEACE AUSTRALIA LTD
v.
REDBANK POWER COMPANY PTY LTD AND SINGLETON COUNCIL
PEARLMAN CJ OF LAND AND ENVIRONMENT COURT
5-8, 9, 12-13 September, 10 November 1994
Development consent – Power station – Objector appeal In March 1994 Singleton Council granted Redbank
– Impact of air emissions – “Greenhouse” effect – Pre- Power Company Pty Ltd development consent for the
cautionary principle – Balancing of planning and envi- construction of a Power station and ancillary facilities at
ronmental issues – Appeal dismissed – Land and Envi- Warkworth in the Hunter Valley. Greenpeace Australia
ronment Court Act 1979 (NSIV), s 98 – Intergovernmen- Ltd objected pursuant to s 98 of the Environmental Plan-
tal Agreement on the Environment (1992), cl 3.5.1. ning and Assessment Act 1979 contending that the im-
pact of air emissions from the project would unaccept-
Section 98 of the Environmental Planning and Assess- ably exacerbate the “greenhouse effect” in the earth’s
ment Act 1979 (NSW) provides a third party objector atmosphere and that the Court should apply the precau-
right of appeal to the Land and Environment Court against tionary principle and refuse development consent for the
development consent for designated development for the proposal.
purposes of the Act. It includes power stations.
Held:
In May 1992 the governments of the Commonwealth,
the States and Territories and the Australian Local Gov- The application of the precautionary principle dictated
ernment Association signed an Intergovernmental Agree- that a cautious approach should be adopted in evaluation
ment on the Environment which provides, amongst other the various relevant factors in determining whether or
things, for the establishment of a National Environmen- not development consent should be granted, but it did
tal Protection Agency (NEPA). The NEPA is to be min- not require that the greenhouse issue should outweigh
isterial council chaired by the Commonwealth and hav- all other issues.
ing the authority to set national environmental protec-
tion measures. Clause 3.5.1 contains a definition, in the Leatch v National Parks & Wildlife Service (1993) 81
following terms, of what is commonly called the “pre- LGERA 270, referred to.
cautionary principle”.
Balancing all relevant planning and environmental fac-
“Where there are threats of serious or irreversible envi- tors the proposal should, subject to several conditions,
ronmental damage, lack of full scientific certainty should be allowed to proceed.
not be used as a reason for postponing measures to pre-
vent environmental degradation.
APPEAL
In the application of the precautionary principle, public
and private decisions should be guided by: This was a third party objector appeal under s 98 of the
Environmental Planning and Assessment Act 1979
careful evaluation to avoid, wherever practicable, seri- against a grant of development consent for a power sta-
ous or irreversible damage to the environment; and tion and ancillary facilities. The facts are set out in the
judgement.
an assessment of the risk-weighted consequences of vari-
ous options”. J B Simpkins, for the applicant.
335
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
B J Preston, for the first respondent (Redbank Power Particulars
Company Pty Ltd)
The emission of carbon dioxide from the proposed de-
J R Connors (solicitor), for the second respondent (Sin- velopment and its contribution to the human enhanced
gleton Council). greenhouse effect.
Judgement Reserved The need for the development
10 November 1994 Particulars
PEARLMAN J. The absence of any current need for the increased ca-
pacity for generating electric power
INTRODUCTION the availability of alternative means of addressing future
energy needs which have lower or zero emissions of car-
This is an appeal by Greenpeace Australia Ltd bon dioxide”.
(Greenpeace) brought under s
The proposed development (the project)
98 of the Environmental Planning and Assessment Act
1979 (NSW) against a development consent granted to The environmental impact statement proposes the de-
first respondent, Redbank Power Company Pty Ltd velopment of a fluidised-bed combustion power plant.
(Redbank) by the second respondent, Singleton Council It is intended to utilise coal washery tailing as fuel, re-
(the Council). placing a current method of tailing disposal.
The development application which is the subject of these Tailing is a waste product which results from the mining
proceedings No. 183/93, was lodged with the Council and washing of coal. The tailing, mixed with water,
together with an amended environmental impact state- emerges from the washing as a slurry. The present
ment on 8 November 1993. In the development applica- method of disposal of that slurry is to pipe it to specially
tion, the development is described as “generating works constructed tailing dams. The slurry is deposited into
involving the construction of a 120 MWe nominal rated these dams and considerable time, sometimes years, is
fluidised-bed combustion power plant”, and is said to required to allow the solid material to settle out.
involve the construction of a “power station and ancil-
lary (sic) facilities including overland pipes carrying Tailing is to be supplied to the project directly from the
slurry and water”. coal washery plants at the Warkworth and Lemington
mines. It is to be transferred by a slurry pipeline to the
The power plant is to be located at Warkworth, in the site. Tailing from dams may also be used to supplement
Hunter Valley, between Jerrys Plains Road (MR 213) and the fuel stockpile when required.
long Point Road adjacent to the Workworth Mine. Land
use is controlled by the Singleton and Patrick Plains Plan- The energy produced by the project is intended to be
ning Scheme Ordinance, under which the land on which sold under a 30 year contract to Shortland Electricity.
the plant is to be sited is zoned non-urban 1(a), and the The project is to produce 120 MW of which the net out-
slurry pipelines are within land zoned non-urban 1(a) put (approximately 100MW), enough to supply approxi-
and non-urban 1(b). The development falls within the mately 100,000 homes, will be sold.
definition of “generating works” in the planning scheme
ordinance. Generating works within those zones are in- The gaseous emissions from the boiler stacks of the
nominate column IV uses, and may be carried out with project will include primarily water vapour and carbon
consent. dioxide and small amounts of oxides of sulphur, oxides
of nitrogen and carbon monoxide. The project would
By notice dated 23 March 1994 the Council notified also emit small particles containing metals and fluorides.
Redbank of the determination of the development appli-
cation by the grant of consent subject to a number of Greenpeace’s concern in this appeal is with the carbon
conditions. On 15 April 1994, Greenpeace commenced dioxide (CO2) which will be emitted by the project when
these proceedings. Its statement of issues filed in the it is fully operational. Carbon dioxide is a natural prod-
proceedings is as follows: uct of combustion of fossil fuels, and is a contributor to
the enhanced greenhouse effect, to which I will return in
“The impact of the proposed development on the envi- more detail later in this judgement.
ronment
Sulphur dioxide (SO2) is one of the contributors to a prob-
336
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD AND SINGLETON COUNCIL
lem known as acid rain. Acid rain forms when SO2 re- governmental responseIt is necessary to outline briefly
acts with atmospheric water vapour to create sulphuric the policy background concerning the greenhouse effect.
acid. In the project, SO2 emission is proposed to be con-
trolled through the introduction of limestone directly into Earth’s atmosphere, while composed mainly of nitrogen
the fluidised-bed combustor. The limestone breaks down and oxygen, also contains a number of trace gases such
into calcium oxide which reacts with the SO 2 to form as (CO 2) methane (CH4) and ozone. Over the past 200
calcium sulphate, dry material which collects together years the global concentrations of a number of these gases
with ash. A significant feature of the fluidised-bed com- have increased due to human activities such as the burn-
bustion design is that SO2 is captured directly during the ing of fossil fuels, deforestation and large scale farming.
combustion. The naturally occurring gases, together with synthetic
chemicals such as cholorofluorocarbons (CFC’s), have
As to nitrous oxides (NOx) the boilers are designed to the capacity to absorb radiation and there is concern that
operate at a relatively low combustion temperature their increased concentrations in the atmosphere is re-
(900oC) which is lower than that of conventional coal sulting in a change in global temperatures.
fired boilers (1100C). Nitrous oxide emissions will be
controlled by maintaining a limited range of fuel-to-air The Environment Protection Authority in its report enti-
ratios, low excess air and combustion gas times and an tled “New South Wales State of Environment 1993” (ex-
oxidising environment. In these conditions and with hibit 9) discussed global warming. It stated at p 5 of that
lower combustion temperature, it is not possible for sig- report that CO 2 has been estimated to account for over
nificant amount of NO x to form. half of the global warming phenomenon…”. The report
continued as follows:“…Australia’s CO2 emissions rep-
Particulates are to be removed from the flue gases by resent approximately 1.4 per cent of the world total.
use of fabric filter baghouses. These filters are expected However, on a per capita basis it is estimated that Aus-
to lead an overall removal rate of 99 per cent of particulate tralia is the world’s fourth-largest contributor…”
materials. Flouride contained in the flue gases would
also be removed through a reaction with dust contained The report went on to discuss other major greenhouse
in the filter which converts the gaseous flouride into a gases – CH4, nitrous oxide and CFCs – as well as the
particulate flouride and traps those particles in the filter. question of CO2 sinks (that is, absorbers of CO2), the
two major natural ones of which are the ocean and for-
The section 90 considerations ests.
The project raised a number of relevant matters for con- Due to the intrinsically global nature of the problems
sideration under s 90 of the Environmental Planning and associated with human enhanced greenhouse effect, an
Assessment Act. These include air emissions, noise, international instrument was created in an attempt to co-
water, flora and fauna, visual amenity, social and eco- ordinate a response. The United Nations Framework
nomic impact. convention on climate change (exhibit 10 the Framework
Convention) was opened for signature in May 1992.
All these matters were addressed in the development Australia ratified the Framework Convention and it en-
application and environmental impact statement and were tered into force on 21 March 1994. Article 2 of the
considered by the Council in its assessment of the devel- Framework Convention states as its objective the follow-
opment application. ing:“The ultimate objective of this Convention… is to
achieve… stabilisation of greenhouse gas concentration
About 75 submissions were received from individuals in the atmosphere at a level that would prevent danger-
and groups. The concerns which they raised were ad- ous anthropogenic interference with the climate sys-
dressed by Redbank and considered in the Council’s as- tem…”
sessment. Copies of those submissions and Redbank’s
responses to them were tendered in evidence. To that end, the parties to the Framework Convention
made certain commitments in Art 4A. These commit-
The Council sought and took into consideration advice ments include, among others:“1(f) [To take climatic
on the proposed development from 12 government au- change consideration into account, to the extent feasi-
thorities, and obtained advice from an independent con- ble, in their relevant social, economic and environmen-
sultant. tal policies and actions…
However, the only issue which is raised in this appeal is 2 (a)[To] adopt national policies and take correspond-
the impact of air emissions from the project. The task of ing measures on the mitigation of climate change,
the Court, then, is to consider that impact as well as all by limiting its anthropogenic emissions of green-
other relevant factors in determining whether or not to house gases and protecting and enhancing its green-
grant development consent.The greenhouse effect and house gas sinks and reservoirs…”
337
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
While the Australian Government is now bound to act cially in the absence of similar action by our major trad-
generally in accordance with its international obligations ing partners and competitors. Governments agree that it
under the Framework Convention, there is no national is too early at this time to determine the extent to which
legislation yet in place aimed at specifically implement- action beyond no-regrets measures will be required”.
ing any of its obligations. What there is, however, is the
Intergovernmental Agreement on the Environment (ex- To this end, first phase measures will be designed to cause
hibit 11, the Intergovernmental Agreement). This docu- “minimal disruption to the wider community, any single
ment (entered into by the Federal Government, all State industry sector, or any particular geographical region”.
and Territory Governments, and the Australian Local
Government Association) is designed to enable a co-op- The National Greenhouse Response Strategy contains
erative national approach to the environment”. specific sectoral strategies, starting with the energy sup-
ply sector. The strategy outlined includes improving the
The Intergovernmental Agreement contains general pro- efficiency of the market, developing cost-competitive
visions related to its operation and principles to be ap- energy generation with lower greenhouse gas emissions
plied by the parties. In a number of schedules, it deals and co-ordinating supply side and demand side action.
with specific areas of environmental policy and manage-
ment. Schedule 5 is entitled “Climate Change”. This The National Greenhouse Strategy provides that strat-
schedule discusses the need for Australia to be part of an egy for the energy sector is designed to achieve the fol-
international response to the problem of greenhouse-en- lowing objective:“limit greenhouse gas emissions aris-
hanced climate change and details the creation of a Na- ing from energy production and distribution wherever
tional Greenhouse Response Strategy. It also adopts an economically efficient by minimising greenhouse gas
interim planning target in the following terms:“To stabi- emissions per unit of each type of energy supplied to
lise greenhouse gas emissions… based on 1988 levels, end users, and by promoting alternative energy sources
by the year 2000, and reducing these emissions by 20% that have the potential to lower greenhouse gas emis-
by the year 2005… subject to Australia not implement- sions per unit of energy supplied”.
ing response measures that would have net adverse eco-
nomic impacts nationally or on Australia’s trade com- There is an important aspect to note in relation to both
petitiveness, in the absence of similar action by major the Intergovernmental Agreement on the Environment
greenhouse gas producing countries”. and the National Greenhouse Response Strategy. In both
documents the Australian Local Government Associa-
In accordance with Sch 5 of the Intergovernmental Agree- tion is represented as a party. However, both documents
ment, the National Greenhouse Response Strategy (ex- expressly recognise that local government authorities
hibit H) was produced and endorsed by the Council of cannot be bound to observe the terms of either (Inter-
Australian Governments in December 1992. The key governmental Agreement cl 1.11 or National Greenhouse
elements of the National Greenhouse Response Strategy Response Strategy p5).Greenpeace’s caseIn the light of
are stated to include amongst other things:a set of gen- this background, Mr. Simpkins, counsel for Greenpeace,
eral principles underlying all response measures; a set submitted that significant weight should be attached to
of sectoral objectives and sectoral strategies; the greenhouse issue in the Court’s consideration of the
factors to be taken into account in determining whether
a phased plan of action or not to grant consent to the proposed development. He
outlined the matters which should lead to significant
The first phase response measures will concentrate on weight being so attached.There is a host of documents
“no-regrets” actions. No-regrets actions are those that which study, review and record the impact of CO2 emis-
address the problem of the enhanced greenhouse effect sion in relation to the greenhouse effect. Apart from the
while producing a net benefit (or, at least no net loss). documents I have already mentioned, Mr. Simpkins re-
First phase response measures will also include a number lied upon a number of reports prepared by the Intergov-
of “insurance” measures to reduce uncertainties about ernmental Panel on Climate Change which were tendered
climate change impacts and the viability of response as exhibit 5 and which, he submitted, from the scientific
measures, chiefly involving research and review studies. basis upon which the international community and so-
cial governments should make policy decisions.All these
The phased approach is discussed in greater detail in documents demonstrate, so Mr. Simpkins submitted, that
appendix C to the National Greenhouse Response Strat- there is considerable international and national concern
egy. At p 88 the National Greenhouse Response Strat- about the enhanced greenhouse effect.While there is no
egy states:“Adoption of more interventionist response scientific certainty about the enhanced greenhouse ef-
measure than the no-regrets and insurance measures in fect, there is a widespread concern that it is likely to have
the first phase could have net adverse economic impacts a major impact upon health, agriculture, ecosystems, sea
nationally or on Australia’s trade competitiveness, espe- levels, rainfall, and snow cover.
338
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD & SINGLETON COUNCIL
The energy sector is a major contributor to the enhanced (which comprises coarse reject and tailing), the report
greenhouse effect. noted a number of problems associated with tailing dis-
posal. In the author’s opinion, “with the exception of
Greenhouse response measures are still being developed municipal sewage, coal washery tailing would consti-
and when developed are likely to be relevant to the tute Australia’s largest water-borne waste disposal prob-
project. lem”. One of the problems is the large land area required
for tailing dams. The report noted the potential of coal
The National Greenhouse Response Strategy contains an reject-fired power plants to reduce land requirements and
objective to which the energy sector is required to con- estimated that, by the turn of the century, the adoption of
form which is designed to limit greenhouse gas emis- 1400 MW of coal reject-fired power generation capacity
sions by, first, minimising those emissions, and secondly instead of a similar quantity of major coal-fired capacity
promoting alternative energy sources.Mr. Simpkins sub- should reduce the net area of land alienated in New South
mitted that the grant of development consent in this case Wales by 600 hectares annually.
would be inconsistent with that objective.The proposed
contract between Redbank and Shortland Electricity for The report recognised other problems associated with
the supply of electricity for 30 years would have the ef- tailing disposal. Tailing is the impermeable to water,
fect of rendering Redbank immune from any further re- and tailing dams do not dry out. A solid-looking crust
sponse measures that may be adopted, unless there was forms on the dam which prevents further evaporation,
legislative intervention or adverse financial but is not strong enough to take any substantial weight,
consequences.Mr. Simpkins’ submission was that attach- such as that of heavy machinery. Another problem is the
ing significant weight to the greenhouse issue in this case acidification of water as a result of oxidation of pyrite
would necessarily lead to a refusal of consent, unless it and other sulphur compounds contained in the tailing.
could be shown that the emission of CO2 was no worse In order to prevent the escape of acidified water into the
than CO2 emission from existing sources, and that there surrounding soils, tailing dams have been designed with
was a demonstrated demand for further energy supply.It impermeable walls. They may however, overflow or the
was Greenpeace’s case that the evidence showed that CO2 walls may be breached, discharging waters with a high
emissions from the proposed development would increase acid content and containing high concentration of toxic
the total quantity of CO2 emitted, and that there is no heavy meal ions.
demand for further energy supply. It was thus contended
that the Court should take into account the development The report also noted that, in 1989-1990, reject repre-
of the response measures contemplated by the National sented one-quarter of all coal mined in New South Wales,
Greenhouse Response Strategy and the precautionary and in the Hunter Valley, tailing can frequently account
principle, and as a consequence refuse to grant consent for as much as 50 per cent of total reject.
to the proposed development
It also asserted that the disposal of ash from a coal re-
Redbank’s case was that, in weighting up the factors to ject-fired power station would present fewer problems
be taken into account in determining whether or not to that unburnt reject, principally because ash is more hos-
grant consent, the Court ought to take into account two pitable to plant life.
significant matters:The principal reason for the project
is to implement an environmentally responsible method Redbank said that this report was the catalyst for the
of tailing disposal; and development application which it has made. The report
recommended the utilisation of coal reject-fired power
the fluidised-bed combustion system which is to be op- plants, which is what is contemplated by the develop-
erated in the project has the environmentally beneficial ment application.
effect of reducing SO 4 and NOx emissions in compari-
son with conventional power stations. As to improved SO2 and NOx emissions, Redbank relied
on the improved control that the fluidised-bed combus-
In 1991, the Office of Energy released a consultant’s re- tion system permits and which I have already described,
port entitled “Coal Washery Rejects for Power Genera- namely that limestone is injected directly into the bed
tion” (exhibit J). The purpose of the report, as outlined combustor so that SO2 is captured before it is emitted
in its preface, was to examine whether “…combustion into the atmosphere, and that the relatively low combus-
of reject electricity for electricity generation represents tion level results in relatively low NOx emission.The ex-
an economically and environmentally attractive solution” pert evidence Redbank call two expert witnesses to give
to two problems – first, the problem of loss of energy evidence.
potential due to the inefficiency of coal washing systems,
and secondly, the problem of tailing disposal. The first of them Mr. Thor Hibbeler, whose expert re-
port was exhibit M. He is a consulting engineer in the
In examining the characteristics of coal industry reject employ of National Power Company of Oakland, Cali-
339
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
fornia, which is one of the joint ventures involved in mines, and that his conclusions as to the impact of the
Redbank, and he has had considerable environmental project and its need were based on his general under-
consulting experience. Mr. Hibbeler was responsible for standing of the problems associated with tailing disposal.
the preparation of the environmental impact statement
and wrote portions of it. Two experts were called by Greenpeace.
In his report, Mr. Hibbeler gave evidence that the use of The first of these, Mr. Edward Johnstone, was not of great
fluidised-bed boilers to combust tailing fuel will result assistance to the Court for a number of reasons. First,
in low levels of SO2 and NO x and that the use of tailing he was hostile and argumentative in the witness box,
as a fuel would have land use benefit as well as a more which reduced the credibility of his evidence. Mr.
efficient use of energy resources. He also noted the fact Simpkins conceded in his submissions that there was an
that the project would emit CO2 and produced calcula- “element of tension” when Mr. Johnstone was being
tions to show the CO2 emission rate between 1,250 and cross-examined. Secondly, Mr. Johnstone’s expert re-
1,290 kg/MWh. port (exhibit 2) was made up of three pages of expert
comment, and 11 pages of curriculum vitae, which raised
Mr. Hibbeler was cross-examined about his knowledge some doubt on its face as to whether it was truly a report
of the problems arising from tailing disposal at the of expert testimony. When one turns to the report itself,
Warkworth and Lemington mines and while he know only it appears merely to be expert opinion in contradiction
a little about specific problems at these particular sites of the evidence of both Mr. Hibbeler and Mr. Alper, and
he remained firm in his conviction that the utilisation of a large part of it merely criticises Mr. Alper’s reference
tailing as fuel in the project would have an environmen- to problems occurring in the United States.
tally beneficial effect at those mines and remained as the
justification for the project in the broader context of the There was thus little in Mr. Johnstone’s evidence which
coal industry in the Hunter Valley. is of any real assistance. This is exacerbated by the fact
that Mr. Johnstone admitted, in cross-examination that
The second expert was Mr. Roy Alper. he had not been specifically involved in any projects in
the Hunter Valley concerned with tailing disposal, al-
Mr. Alper is the co-founder and executive vice president though he had been involved in an environmental im-
of National Power Company, and has had extensive ex- pact assessment for coal washery reject emplacement at
perience in electricity resource planning and policy. His Hexam. His main involvement in the Hunter Valley had
report was tendered in evidence as exhibit N. been with water systems in various mines in that loca-
tion, over a period about 14 years ending in 1986, which
In his report, Mr. Alper gave his opinion that the project meant that he was not able to recall specifics.
is an example of ecologically sustainable development,
and that it will be consistent with the National Green- The last expert to be called was Dr. George Wilkenfeld,
house Response Strategy. In addition, he dealt with the who has had extensive experience in energy analysis,
need for the project. He noted the fact that the need for public policy and administration and urban and environ-
new generating capacity in New South Wales is likely to mental studies. He has also had a wide experience in
arise between 1998 and 2005, and that the project is not consulting in the planning, supply or use of energy and
likely to start operation before 1997 or 1998. He con- related services. His report became exhibit 3.
ceded that this might be a few years in advance of a pre-
cise date of need for new capacity, but was of the opin- Dr. Wilkenfeld’s report set out, as background, the pub-
ion that in view of the small size of the project, and its lic policy issues of ecologically sustainable development
extended life of 30 years, its timing was reasonable. He and the greenhouse effect, and discussed the National
pointed out that Redbank’s “primary mission” is not the and international responses to this issue, through the
production of power, but the utilisation of tailing in or- National Greenhouse Response Strategy and the Frame-
der to reduce its environmental consequences and to re- work Convention. His main concern, in the light of this
cover energy value lost in discarded tailing. He explained background (which I have earlier generally described)
that his company had been approached by the consultant was whether there is a need for the project, and the
to the Office of Energy in New South Wales when that project’s impact on greenhouse gas emissions. With the
consultant was investigating alternative methods of tail- qualification that his analysis depended upon a large
ing disposal for the report entitled “Coal Washery Re- number of assumptions, Dr. Wilkenfeld made the fol-
jects for Power Generation” and that his company had lowing points:Electricity generation in New South Wales
had extensive subsequent consultations with the Office is dominated by fossil fuels, coal plants account for nearly
of Energy and the Department of Mineral Resources. 78 per cent of installed capacity;
In cross-examination, Mr. Alper admitted that he had no there is at present an excess capacity of 56 per cent; New
direct knowledge of the Warkworth and Lemington South Wales will probably not need new electricity gen-
340
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD & SINGLETON COUNCIL
eration before 2005, and there will be an impact from 1,250 and 1,290 kg/MWh.
energy efficiency programmes in place following the
National Greenhouse Response Strategy. ConclusionThe evidence establishes that the project will
emit CO2 which is a greenhouse gas, and will contribute
the net output of electricity from the project will dis- to the enhanced greenhouse effect, a matter of national
place existing power station output as long as there is and international concern. Greenpeace contended that
excess capacity; this issue, the greenhouse issue, should outweigh all other
factors to be taken into account in assessment of the
when the excess capacity is absorbed (that is, by 2005 or project and it should lead to a refusal of consent.
thereabouts), the project will have the effect of deferring
or displacing other means of supplying energy services I accept that there is national and international concern
since Redbank’s contract with Shortland Electricity will with the enhanced greenhouse effect, and with the en-
continue in operation until about 2026; ergy sector’s contribution to it. I also note that responses
designed to mitigate that effects are still in the process
the other means of energy supply which are likely to come of development. I take into account the objective of the
into operation after 2005 include such means as more energy strategies which the National Greenhouse Re-
modern conventional coal plants; advanced coal plants; sponse Strategy enunciates and which I have earlier
gas-fired combined cycle plants; the substitution of natu- quoted. But these matters, and the greenhouse issue gen-
ral gas for electricity at the point of use; gas co-genera- erally, must be considered in the light of the policy back-
tion; the substitution of renewable energy forms in elec- ground.
tricity generation; and substitution of renewable energy
forms for electricity at point of use. The Framework Convention, the Intergovernmental
Agreement on the Environmental and the National Green-
Annexed to Dr. Wilkenfeld’s report is a report furnished house Response Strategy outline policy objectives and
to the Office of Energy by IPC Worldwide PTY Ltd as- responses to the problem of enhanced greenhouse effect,
sessing greenhouse gas emissions for the project. In or- but they stop short of expressly prohibiting any energy
der to assess whether the project will increase or decrease development which would emit greenhouse gases. They
the overall greenhouse gas emissions released by the New are policy documents only, and they expressly provide
South Wales energy sector, IPC Worldwide made three that they do not bind local government. There is nothing
estimates:The amount of CO 2 likely to emitted from the in those documents, or any other background documents
project; which were tendered in evidence, which requires the
Court to refuse to grant consent or which would prohibit
The amount of CO 2 likely to be emitted from existing the development of power stations per se. Whether they
power stations which the project is likely to displace; should be prohibited is, of course, a matter of govern-
ment policy and it is not for the Court to impose such a
The amount of CO2 and CH4 emission which is likely to prohibition. It is for State and national governments to
avoided because the project will not need to mine the take into account the competing economic and environ-
extra coal which would be necessary to supply existing mental issues raised by the enhanced greenhouse effect
power stations to produce an equivalent quantity of elec- to set policy in the light of those issues. Thus far, gov-
tricity. ernmental policy has been to set first phase responses,
and more response measures are intended to be devel-
The result of IPC Worldwide analysis was that the project oped over time by national and international policy-mak-
was “most likely’ to emit 19 per cent more greenhouse ers.
gas emissions than an equivalent production from exist-
ing coal-fired power stations. This would result in a net It is important also to bear in mind that the Framework
increase in overall CO2 emissions from power stations Convention, the Intergovernmental Agreement on the
in New South Wales of approximately 0.47 per cent. Environment and the National Greenhouse Response
Strategy do not constrain individual action. There are as
These results are indicative only, because there are many yet no specific directives or obligations cast upon indi-
uncertainties in the assumption and information upon vidual operators in the energy field. This may come as a
which they are based. For example, IPC Worldwide ac- result of the development of further response measures
cepted a figure of 1,302 kg/MWh furnished by Redbank but thus far the response to the enhanced greenhouse ef-
as representing the amount of CO2 emission from the fect is in the realm of governmental policy.
project. Dr. Wilkenfeld believed this to be an underesti-
mate, and thought a figure of 1,380 kg/MWh would be Another important matter to note is the uncertainty in
more accurate. Mr. Hibbeler gave evidence of refine- the evidence about the effect of CO2 emission from the
ments in the calculations of fuel composition, leading to project. In absolute terms, the project will emit CO2.
an estimate of the amount of CO2 emission of between But what impact that will have on warming, within the
341
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
State or nationally or internationally, is very uncertain. ergy supplied by the older and less efficient coal-fired
Redbank argued that the cumulative effect of the CO2 power stations. It is possible to conclude that the ab-
emission from the project is likely to be minimal. IPC sence of any current need for an increase in power sup-
Worldwide calculated that the project would constitute a ply is not a significant factor.
net increase in overall CO2 emission from State power
stations of approximately 0.47 per cent. Dr. Wilkenfeld As to future need, it was Greenpeace’s argument, based
thought that the project would most likely result in green- on Dr. Wilkenfeld’s expert opinion, that, in the long term,
house gas emissions of between 11.8 and 27.9 million when the excess capacity is taken up, the project will
tonnes of CO2 equivalent over its 30 year life, figures displace development of alternative means supplying
which he considered significant in comparison with to- energy services which may produce zero or near zero
tal electricity system emissions of 45 million tonnes an- greenhouse gas emissions of. But Dr. Wilkenfeld con-
nually. ceded, in cross-examination, that the existence of the
project in the long term would not impede the imple-
Greenpeace’s contention was that scientific uncertainty mentation of alternative energy sources.
should not be used as a reason for ignoring the environ-
mental impact of CO2 emission. In other words the Court All these matters lead, my opinion, to a conclusion that
should take into account the “precautionary principle”. the greenhouse issue should not outweigh all other fac-
That principle has been the subject of several formula- tors relevant to a determination of whether or not to grant
tions, but the relevant one for this case is set out cl 3.5.1 consent, but must be taken into account in the Court’s
of the Intergovernmental Agreement on the Environment overall assessment of the project. What, then, are the
in the following terms:“Where there are threats of seri- other factors which the Court must take into account in
ous or irreversible environmental damage, lack of full reaching its determination ?
scientific certainty should not be used as a reason for
postponing measures to prevent environmental Redbank pointed to the beneficial environmental effects
degradation.In the application for precautionary princi- of the project. It will use tailing as fuel, thereby avoid-
ple, public and private decisions should be guided ing the detrimental environmental effects of tailing dis-
by:careful evaluation to avoid, wherever practicable, se- posal in dams. It will produce lower emissions of SO2
rious or irreversible damage to the environment; and an and NOx in comparison with the coal-fired power sta-
assessment of the risk-weighted consequences of vari- tions which it is likely to displace.
ous options”.
There are other beneficial effects as well. The project
There are, however, instances of scientific uncertainty will reduce the amount of land sterilised by tailing dams.
on both sides of the issues in this case. For example, It will convert a waste product into a usable one. It will
Redbank has contended that tailing dams pose environ- permit more efficient use of energy resources by recov-
mental problems, whilst Greenpeace has denied that there ering coal currently discarded in tailing.
are serious environmental problems surrounding current
methods of tailing disposal. On the other hand, Greenpeace contended that Redbank had not demon-
Greenpeace has asserted that CO 2 emission from the strated a need to utilise the tailing at either Warkworth
project will have serious environmental consequences, or Lemington mines. Mr. Simpkins relied on environ-
whilst Redbank has asserted that there is considerable mental management plans and annual reports of both
uncertainty about its consequences. The important point mines, as well as report to Lemington Mine from Coffey
about the application of the precautionary principle in & Partners International (exhibit 7) to show that tailing
this case is that “decision-makers should be cautious: disposal had not been flagged as a problems at either
(per Stein J in Leatch v National Parks & Wildlife Serv- mine. I am satisfied, however, from the evidence of Mr.
ice (1993) 81 LGERA 270 at 282). The application of Hibbeler and Mr. Alper, and from the report of the con-
the precautionary principle dictates that a cautious ap- sultant to the Office of Energy, that there are problem
proach should be adopted in evaluating the various rel- generally perceived in the coal industry in relation to tail-
evant factors in determining whether or not to grant con- ing disposal. In any event, the fact that neither the
sent; it does not require that the greenhouse issue should Warkworth mine nor the Lemington mine has adverted
outweigh all other issues. to any of those problems cannot lead to a conclusion that
the project will not have the environmental benefits it
Greenpeace’s further submission was that there was no has claimed.
need for the project. The evidence establishes that there
is an excess capacity in the energy system which is likely There was no challenge by Greenpeace in relation to any
to last until early into the next century. However, the other s 90 considerations. The project was comprehen-
establishment of the project in that circumstance will have sively assessed by the Council, governmental and other
the effect of displacing existing power supply, and the authorities were consulted, and objections addressed.
expert opinion was generally that this is likely to be en-
342
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD & SINGLETON COUNCIL
In taking all these matters into account, I have concluded to maturity, or that the (X) 2 omitted from the project is
that the development application should be approved. thereby permanently removed from the atmosphere?
The question remains as to the conditions which should However, Council Condition 47 as drafted seems to me
be imposed on the grant of consent. Conditions to be very uncertain. A tree-planting programme may be
Greenpeace tendered a set of draft conditions (a copy of beneficial for a number of reasons. It may have environ-
which is attached marked “B” at 162) which it contended mental benefits, it may improve visual aspect, it may
should be imposed if the Court were minded to grant constitute a greenhouse sink. I have therefore decided
development consent. There were 14 of them; they were impose a condition requiring a tree-planting programme
unnumbered, but for ease of reference, I have inserted the reasonable satisfaction of the appropriate council
numbers consecutively from 1 to 14.The Council, in officer in accordance s91(3A) of the Environmental Plan-
granting development consent, imposed 47 conditions ning and Assessment Act.Draft conditions 4 and 5 were
(the Council conditions). Most of these were not in con- designed, I think, to limit the effect of CO2 emission by
tention, and I propose to adopt them unaltered. How- limiting the life of the project requiring to lapse if not
ever, three of them, number 16, 22 and 47, were directly commenced within two years. They are a response to
challenged by Greenpeace in that it proposed conditions condition 22 of the Council’s conditions. I can see no
dealing with the subject of these three and suggested al- advantage in imposing either of these conditions. The
ternatives to them.In considering the conditions which evidence was that the project depended on a long-term
Greenpeace has proposed (the draft conditions, it is nec- contract with Shortland Electricity. Its design and ca-
essary to bear in mind the general requirement for valid- pacity were based on that contract, and the project has
ity of conditions. It is well established in this Court that been assessed in the light of the environmental impact
the tests of validity enunciated in Newbury District Coun- statement which specifies that design and to which
cil v Secretary of State for Environment [1981] AC 758 Redbank is required to conform by condition 1 of the
apply. Those tests require conditions, first, to be for a Council’s conditions. Nor was there any evidence to
planning purpose or to relate to a planning purpose; sec- establish when alternative energy sources might be com-
ondly, to fairly and reasonably relate to the subject de- mercially available, so as to set the time limitations that
velopment, and thirdly, to be such that a reasonable plan- these conditions propose. In those circumstances, I re-
ning authority could properly have imposed. Moreover, ject them.Draft condition 6 is a response to condition 16
subject to some statutory exceptions presently irrelevant, of the Council’s conditions. I do not think, however,
conditions must be final and certain (Mison v Municipal that the draft condition would operate any more effec-
Council [1991] 23 NSWLR 734;73 LGRA 349).It will tively than condition 16 to limit the fuel source to tailing
be seen that draft conditions 1 and 14 are directed to from the Warkworth and Lemington mines. Condition
essentially the same subject, namely meeting the interim 16 requires Council approval before tailing may be ob-
target for greenhouse emissions enunciated in the Na- tained from any other mine, and is, in my opinion, a sat-
tional Greenhouse Response Strategy. Mr. Simpkins isfactory condition to impose.Draft conditions 7 and 8
submitted that one or other of these conditions should are designed to impose a limit on the emissions from the
be imposed because Redbank would be immune to fu- project. The difficulty with draft condition 7 is that it
ture response measures. Indeed, Dr. Wilkenfeld admit- sets a limit which, as I have earlier pointed out, is uncer-
ted in cross-examination that the existence of Redbank tain, and would therefore be unreasonable to impose and
would have no effect on the implementation of alterna- difficult to enforce. Condition 8 is superfluous, because
tive energy sources. In addition, condition 1 may well condition 1 of the Council’s conditions requires Redbank
be beyond the power of this Court to impose; and condi- to conform to the matters specified in the environmental
tion 14 is uncertain in its requirement for evidence to impact statement. Draft condition 10 would, in my opin-
show whether or not Australia has met the National ion, be an unreasonable condition to impose in the ab-
Greenhouse Response Strategy interim target.Draft con- sence of any precise evidence as to any alternative tail-
ditions 2, 3, 9 and 12 are designed to mitigate the effect ing disposal methods likely to available. It is, further-
of greenhouse gas emission from the project by requir- more, uncertain in its application, there being no precise
ing the planting of trees to establish a greenhouse sink, parameters act for a determination of what are “prudent
and they are suggested as a substitute for condition 47 and feasible alternatives to disposal”.Draft condition 11
imposed by the Council. There was no evidence to es- is unnecessary. No doubt the project may never come
tablish the number of trees required, the number tonnes into operation if Redbank fails to conclude a contract
of CO2 to be sequestrated by such trees, nor the precise with Shortland Electricity. In any event, there is no ne-
area of planting that would be required. In the absence cessity to require such a contract before development
of some precision as to these matters, these conditions consent operates because the project must be developed
cannot be said, in my opinion, to fairly and reasonable in accordance with the environmental impact statement
relate to the subject development, as one of the Newbury (according to the Council’s condition 1) and Redbank’s
tests requires. Moreover, each of them raises some doubt commercial arrangement for disposal of the electricity
as to enforceability – how could it be determined, for which it will generate will not have any effect on design
example, whether trees have been planted and sustained or capacity if the plant is built according to the environ-
343
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
mental impact statement. Moreover, condition 22 limits Point Road is to be upgraded to type “ARE” Auxiliary
the life of the project to 30 years, so that it is unneces- Right Tura Lanc RTA Road Design Guidelines, 1991
sary to impose this condition in order to achieve that time (Type “B” AUSTROADS). Plans are to be submitted to
limit.Draft condition 13 is not, in my opinion, fairly and the RTA for approval prior to the commencement of work.
reasonably related to the project, and it accordingly fails
one of the Newbury tests. It would, moreover, be unrea- Entries to the site off Long Point Road
sonable to impose. Demand side measures are, as the
National Greenhouse Response Strategy clearly shows, The entries are to be the sites off Long Point Road are to
a matter of government policy and not the responsibility be constructed as a Type Autoroads intersection. Widen-
of an individual operator within the energy sector. This ing of Long Point Road
condition is also likely to be unenforceable in requiring
reduction of CO2 emission by 1.26 million tonnes per Long Point road is to be upgraded to 6.0m wide bitumen
year.For all these reasons, I propose to impose the Council sealed road with 1.2m shoulders from the existing up-
conditions.Orders graded pavement approximately under the transmission
line easement to the Jerrys Plains Road (MR 213).Flood-
In accordance with the foregoing, my orders are as fol- lighting of Intersections
lows:
Both the MR213/Long Point Road Intersection are to be
The appeal is dismissed. floodlit with the provision of two street lights at each
intersection (with the MR 213/Long Point Road Inter-
Development consent is granted to the construction and section being lit to traffic route lighting standard).A pave-
operation of a 120 megawatt power plant on land being ment is to be made to Council equivalent to the capital-
part of lots 1-3 DP247820 and lots 4-5 DP 247820 at ised contribution for their ongoing running for a five year
Long Point Road and Jerrys Plains Road, Warkworth, period, based on a quotation to be provided by Shortland
and to the construction of an ancillary slurry pipeline Electricity.Contribution of Maintenance of Jerrys Plains
over adjacent land as specified in development applica- Road (MR 213)
tion No.183/93, and subject to the conditions annexed
hereto and marked “A”. An annual contribution of 55,000 (1994 dollars) is to be
paid to Council for the maintenance of the Jerrys Plains
The exhibits may be returned. Road and Long Point Road. The Contribution is to be
CP1 indexed and is to be reviewed at five yearly
I make no order as to costs“ANNEXURE ‘A’”Greenpeace intervals.No direct access of the Jerrys Plains Road (MR
Australia Limited v Redbank Power Company Limited 213)
Singleton CouncilScope of Development
All vehicular access to the development is to be obtained
The development being carried out generally in accord- from Long Point Road. There is to be no vehicular ac-
ance with the amended Environmental Impact Statement cess from the Jerrys Plain Road (MR 213)Intersection
prepared by the National Power Company and ESI En- of Jerrys Plains Road and the Warkworth Mine
ergy Inc dated November 1993 and the additional clari-
fication contained in the responses to comments prepared Should truck haulage to the Redbank Project from the
by the National Power Company and ESI Energy Inc Warkworth Mine be the mines intersection with Jerrys
dated 21 February 1994.Approval of Mine Subsidence Plains Road then that intersection is to be upgraded to a
Board suitable standard as determined by Council’s Subdivi-
sion and Design Engineer. Plans are to be submitted to
The approval of the Mine Subsidence Board to the pro- the RTA for approval prior to the commencement of
posed buildings, structures and pipelines being obtained work.Off Street Parking and Access
prior to the release of any building permit.Environmental
Protection Authority The access to the carpark should be a minimum of 6m
wide with sufficient splay to accommodate turning ve-
The Applicant shall obtain (before construction com- hicles. Carparking should be sufficient to accommodate
mences) and comply with Environment Protection Au- all employee and visitor parking on site.
thority approval under the Pollution Control Act 1970
(NSW) and shall obtain and comply with any licences The access to the plant should be a minimum of 8m wide
required under the Environment Administration Act 1991 with sufficient splay to accommodate turning articulated
(NSW).Upgrading of intersection of Jerrys Plains Road vehicles with the ingress/egress separated by the median.
(MR 213) and Long Point Road
All parking driveways shall be constructed of 200mm
The existing intersection of Jerrys Plains Road and Long consolidated surface quality gravel, 2 coat bitumen sealed
344
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD & SINGLETON COUNCIL
or 25mm asphaltic concrete or alternatively of 50mm The applicant shall undertake at its own expense and
(minimum) reinforced concrete, to be drained and comply with the requirement of the National Parks and
linemarked to Council’s usual standards. Where drive- Wildlife Service regarding works affecting Aboriginal
ways are used by heavy vehicles the specification is to sites in the area of proposed development.Stormwater
be appropriate for their estimated volume and loaded Treatment
weight.Payment of Development Work Supervision Fee
First flush stormwater runoff from the parking area, drive-
Payment of the appropriate Development Works Super- way vehicular maneuvering areas is to be directed
vision Fee, for which an invoice will be forwarded by through oil and silt arresters of sufficient capacity to con-
Council upon completion of all required supervision. tain oil and silt from that area prior to being
Such fee will be based on a rate of 540.00 per hour or discharged.Life of Consent
part thereof for time spent assessing detailed design plans
and inspecting works on site.Council to Approve Plans This consent shall expire thirty (30) years after com-
for Intersection of the Development with Long Point mencement of commercial operation of the project. Ex-
Road tension of the consent beyond its expiration shall require
the review and approval of Singleton Council.Limestone
Engineering plans are to be submitted for the proposed injection
intersection of the development with Long Point Road
for approval by Council’s Subdivision and Development Limestone injection is to be used to control SO2 and
Engineer.Truck Deliveries SO2 is not more than 126 grams per second (g/s) or such
other standard as may be determined by the Environ-
All truck deliveries to site are to occur via the Jerrys ment Protection Authority, whichever is the least (most
Plains Road (MR 213) and Long Point Road. No trucks strict).Flue gas cleaning
are to access the site via Gouldeswille Road except for
emergencies and during construction of the Jerrys Plains The flue gas from the boilers is to be cleaned of
and Long Point Roads improvements. particulate/dust by fabric filter baghouses in accordance
with the requirements of the Environment Protection
Directional Signposting Authority.Stock Height
Directional Signposting to the site is to be provided on The height of the stack is to be in accordance with the
the intersection of Long Point Road and Jerrys Plains requirements of the Environment Protection
Road (MR 213). No direction signposting is to be pro- Authority.Continuous monitoring of stock emissions
vided on the intersection of Gouldesville Road and the
Jerrys Plains Road (MR 213).Fuel Source There is to be continuous monitoring of sulphur diox-
ide, oxides of nitrogen and opacity in the stack and other
At least the majority the fuel burnt the power plant in pollutants is required by the Environment Protection
any one year after commercial operation, on a dry tonnes Authority.
basis, is to be coal washery tailings obtained either di-
rectly from the Warkworth and/or Lemington mine Provision for monitoring of ambient ground level con-
washeries or indirectly from tailings storage dams on the centrations of pollutants
Warkworth and/or Lemington mine leases. Coal washery
tailings are not to be obtained from mines other than the The applicant is to establish and maintain ambient pol-
Warkworth and Lemington Mines without the further lution monitoring stations, the number and location of
approval of Council.Start Up and Supplementary Fuel such stations to be determined by the Environment Pro-
tection Authority.Data on Stock Emissions and Ambient
Start up and supplementary fuel, other than diesel, is to Air Quality to be publicly Available
be obtained only from Warkworth Mine. Alternative
sources may be utilised in emergency situations with the Monitoring data on stuck emissions and ambient air qual-
approval of the Director Environmental Services. ity is to be made available to council at the same time
that it is lodged with the Environment Protection
Project Sitting Authority.Appointment of Environmental Officer
The plant is to be sited on site 2, the centre site, as rec- The applicant is to appoint an Environmental Officer to
ommended in EIS.Fauna Survey and Assessment be responsible for all monitoring and environmental con-
trols. This officer is to be the principal point of contract
Further fauna survey and assessment is to be undertaken between the Council and other regulatory authorities.Use
by the applicant, if required, by the National Parks Wild- of Water Carts
life Service.Cultural Heritage
345
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Water carts are to be used to minimise dust during con- Diversion
struction activities.Use of water spray
The diversion works for Sandy Hollow Creek and the
Water sprays or equivalent are to be used to reduce dust Eastern Tributary are to incorporate the following:
emissions from supplemental and start up fuel
stockpiles.Community Consultative Committee All diversion channels shall incorporate suitable drop
structures to ensure that flow velocities are non-corro-
The applicant is to set up a community consultative com- sive;
mittee prior to the commissioning of the plans. The com-
mittee is to consist of representatives of Council, the All diversion channels shall be stabilised;
Environment Protection Authority, the power plant and
two community representatives approved by Council. Or such other requirements as determined by the De-
The committee is to meet as required by Council. partment of Water Resources.Approval of the Depart-
ment of Water Resources
The committee is to consider any impact which the power
plant may have on residences and the local environment The approval of the Department of Water Resources is
as a result of the operations. to be obtained for the proposed stream diversions under
Part 3A of the Rivers and Foreshores Improvement Act
Removal of Ash 1948 (NSW), prior to work commencing.Erosion and
Sediment Control Plan
Any proposal to transfer ash by road on a regular basis is
to require the separate approval of Council.Arrangement An erosion and sediment control plan for the site is to be
for Rehabilitation of Ash Emplacement prepared prior to work commencing. This is to include
both the disturbance phase and surface water manage-
Satisfactory arrangements are to be made with the De- ment from the operational plant.Stormy Pipeline
partment of Mineral Resources and Warkworth Mine for
the final rehabilitation of ash emplacement.Monitoring The slurry pipeline that crosses the Wollombi Brook is
of Ash Leachate, Drainage Water Quality and Soil Prop- to be constructed such that the pipe is located beneath
erties in the Ash Disposal Areas the maximum anticipated scour depth and shall have
shutoff (isolation) valves installed at each end of the
The applicant is to test and/or monitor ash leachate, drain- crossing, which valves shall be under the sole control of
age water quality and soil properties in the ash disposal Redbank and normally locked open.
areas in accordance with the requirements for the Envi-
ronment Protection Authority.Accumulating Fund for Identification markers shall be placed at road and creeck
Decomposing of the Plant and Site Rehabilitation crossing points to identify the existence of the
pipeline.Disposal of Water into the Hunter River
An accumulating fund is to be established beginning with
the 16th year after commencement of commercial op- Any disposal of reject water from the evaporative cool-
eration to provide sufficient funds for the ing process into the Hunter River is to require the ap-
decommissioning of the plant and site rehabilitation at proval of the Environment Protection Authority and the
the end of its economic life. The anticipated cost of Department of Water Resources. Singleton Council is
decommissioning and site rehabilitation in then current to be provided with copies of the application made in
Australian dollars is to be documented in the first annual those authorities so that it may have the opportunity to
report after the 16th year together with the necessary fixed comment prior to the issue of any licence
annual contribution necessary to cover this cost. A rea- approvals.Disposal of Water into the Warkworth Mine
sonable and conservative estimate should be made as to
the anticipated average interest rate on the earnings in A copy of those portions of an agreement of covenant
the fund for the remaining life of the project. This inter- between the applicant and Warkworth Mine and its suc-
est rate should also be disclosed in the forementioned cessors in title which specifies the water return and ac-
annual report. Subsequent annual reports are to include ceptance obligations of the parties in relation to the power
a statement as to the accumulated earnings of the fund. plants filtrate water from tailing dewatering, ash condi-
tioning water and any other process water is to be lodged
The Council, on request of the applicant with its agree- with Council’s Director Environmental Services prior to
ment, may vary this condition at any time during the life the release of building plans.Submission of a Final Wa-
of the project having regard to current circumstances and ter Balance
projections provided that the broad intent of this condi-
tion to ensure plant decommissioning and site rehabili- The applicant is to submit a final anticipated water bal-
tation at the end of the project life is maintained.Streams ance for the development to Council’s Director Environ-
346
GREENPEACE AUSTRALIA LTD V REDBANK POWER COMPANY PTY LTD & SINGLETON COUNCIL
mental Services prior to the release of building plans. ing of this consent enter a conservation agreement pur-
The water balance is to indicate anticipated and disposal suant to the National Parks and Wildlife Act 1974 (NSW)
points and volumes for all reject water including filtrate, that ensures those trees are at no time subject to clearing
ash conditioning water and other process waters.Sending felling or forestry operations but are maintained in per-
of Evaporation Pond petuity.
An evaporation pond is to be used to evaporate concen- This consent shall expire ten years after commencement
trated brine, the pond is to be isolated from ground wa- of commercial operation of the project. Extension of
ter to prevent contamination.Disposal Arrangements for the consent beyond its expiration shall require the re-
Deposited Salts view and approval of the Court.
The applicant is to advise Council of the disposal ar- Consent for this development lapses after two years if
rangements for any deposited salts.Lapsing of Consent substantial commencement of construction has not oc-
curred unless an extension of consent is granted by the
Consent for the development lapses after five (5) years Court.
if substantial commencement of construction has not
occurred unless an extension of consent is granted by A part from start up fuel the fuel for the plant is to be
Council.Tree Planting coal washery tailings obtained either directly from the
Warkworth and/or Lemington mine washeries or indi-
The applicant shall submit and implement a tree plant- rectly from tailings storage dams on the Warkworth and/
ing programme to the reasonable satisfaction of the Di- or Lemington mine leases.
rector Environmental Services.
The power station shall not produce more than 1290
———- tonnes of carbon dioxide per megawatt hour of energy
sent out or such lesser amount as may be determined,
“ANNEXTURE `B`Greenpeace Australia Ltd v Redbank from time to time, by the Office of Energy.
Power Company Pty Ltd & Singleton Council
The power station shall at all times meet the emission
DRAFT CONDITIONS FOR REDBANK POWER STA- levels indicated in the columns entitled “Stack mass flow
TION.90(3) rate” and “Stack design concentration” of Table 4.1-3 of
the Amended Environmental Impact Statement.
That any contract for the supply of power by Redbank to
Shortland include a provision that if at the year 2000 the s91(3A)
most recent projection submitted by the Australian gov-
ernment pursuant to Article 12 of the Framework Con- That Redbank undertake a tree planting programme ap-
vention on Climate Change indicates that Australia has proved by the Director of the National Parks and Wild-
not achieved a return of anthropogenic carbon dioxide life that will ensure an amount of 37.8 million tonnes
emissions to 1990 levels then Shortland Electricity may carbon dioxide is fixed during the life of the develop-
terminate that contract without penalty on one years no- ment consent and that the carbon fixed by the trees plated
tice. is permanently removed from the atmosphere.
(a) That Redbank plants and maintain to maturity s91AA
enough trees of the genous Eucalyptus to fix 37.8
million tonnes of Carbon dioxide; That the operation of the consent be deferred until
Redbank satisfies the Court that there are no prudent and
That such trees be maintained or disposed of only in such feasible alternatives to the disposal other than by of in-
a manner that ensures permanent sequestration of the cineration of coal tailing waste produced by Warkworth
carbon fixed by those trees from the atmosphere; and Lemington mines. Evidence to satisfy the Court of
this condition must be supplied within 12 months.
That Redbank provide security in the amount of ($10
million) to Shortland Council for the satisfactory com- That the operation of consent be deferred until Redbank
pletion of parts (a) and (b) of this condition. satisfies the Court that it has entered into a contract with
Shortland Electricity for the supply of power throughout
Redbank plant and maintain to maturity 340 151ha of the thirty year period of the development consent. Evi-
trees species to be specified by the Director of National dence to satisfy the Court of this condition must be sup-
Parks and Wildlife and in proportions to be specified by plied within 12 months.
the Director of National Parks and Wildlife and that
Redbank prior to the end of the fifth year after the grant- That the operation of the consent be deferred until
347
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Redbank satisfies the Court that: within 5 years of the date of consent and thence through-
out the remainder of the life of the consent. Evidence to
it can undertake a tree planting programme that will en- satisfy the Court of this condition must be supplied within
sure 37.8 million tonnes of carbon dioxide is fixed in 12 months.
perpetuity during the life of the development consent.
That the operation of the consent be deferred until
has the financial capacity to complete the tree planting Redbank satisfies the Court that Australia will be able to
programme outlined in (a). meet the greenhouse gas emission targets set in the Na-
tional Greenhouse Response Strategy. Evidence to sat-
Evidence to satisfy the Court of this condition must be isfy the Court of this condition must be supplied within
supplied within 12 months. 12 months.Appeal dismissed
That the operation consent be deferred until Redbank Solicitor for the applicant: Environmental Defender’s
satisfies the Court that it will undertake a programme of Office.Solicitor for the first respondent (Redbank Power
demand side energy efficiency within New South Wales Company Pty Ltd): Mallesons Stephens JaquesSolicitor
that will reduce New South Wales electricity system car- for the second respondent (Singleton Council):
bon dioxide emissions by 1.26 million tonnes per year Fitzgerald White Talbot & Co.TFMN
348
(LAND AND ENVIRONMENT COURT OF
NEW SOUTH WALES)
NICHOLLS
v.
DIRECTOR-GENERAL OF NATIONAL PARKS AND
WILDLIFE SERVICE AND OTHERS
Talbot J
1-11, 16-26 August, 29 September 1994
Fauna Protection - Licence to take or kill protected Wales to take or kill any protected fauna in the course of
fauna - Logging - Third party objector appeal against carrying out forestry operations within the Wingham
grant of licence - Fauna impact statement - Adequacy Management Area. The fauna impact statement which
- Factors to be taken into account - Role of fauna accompanied the licence application listed twenty-four
impact statement - Realistic appraisal of application species of endangered fauna. In a lengthy merit hearing
required - National Parks and Wildlife Act 1974 many expert witnesses gave evidence and much scientific
(NSW), ss 92B, 92C, 92D, 92a, 120 documentary material was tendered. The applicant’s case
was directed in particular to alleged imperfections in the
Section 92B of the national Parks and Wildlife Act fauna impact statement.
1974(NSW) provides that only the Director-General of
National Parks and Wildlife may issue a general licence Held: (1) The statutory fauna impact statement is only
to take or kill endangered fauna. Subsection (2) provides one of a number of tools to be used in determining
that an application for such a licence must be whether or not a general licence under s 120 of National
accompanied by a fauna impact statement prepared in Parks and Wildlife Act 1974 to take or kill protected fauna
accordance with a 92D Subsection (5) provides for the should be issued by the Director-General and the
invitation of public submissions. Under subs (6) the applicant’s attack in the present matter failed to take
Director-General, in considering an application, must account of the ongoing opportunities for inspection,
take into account any fauna impact statement or survey and assessment which could lead to responsive
environmental impact statement or any submissions changes to the conditions of the subject licence.
received within time under subs (5). Section 92C
provides a right of appeal to the Land and Environment (2) The applicant’s detailed attack on the subject fauna
Court by an applicant for licence to which s 92B applies impact statement confused the words “to the fullest extent
or by any person who made a submission under subs (5) reasonably practicable” in s 92D of the National Parks
thereof. Section 92D sets out the requirements for a fauna and Wildlife Act with a non-specified requirement to do
impact statement and specifies that the designated all things that were physically possible.
descriptions, assessments and details be “to the fullest
extent reasonably practicable”. Section 120 enables (3) On the whole of the evidence the fauna impact
licences to be issued to take or kill any protected fauna statement did include to the fullest extent reasonably
in the course of carrying out specified development or practicable the information required by s 92D of the
activities. National Parks and Wildlife Act.
The applicant appealed by way of third party objector (Leatch v National Parks and Wildlife Service and
appeal under s 92c of the National Parks and Wildlife Shoalhaven City Council (1993) 81 LGERA 270 and
Act 1974 against the decision of the Director-General of Schaffer Corporation Ltd v Hawkesbury City Council
National Parks and Wildlife to grant a licence under s (1992) 77 LGRA 21, referred to.
120 of that Act to the Forestry Commission of New South
349
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
(4) It was acceptable to allow logging to take place LEGISLATIVE FRAMEWORK
pursuant to a licence under s 120 of the National Parks
and Wildlife Act 1974 to take or kill protected fauna The Timber Industry (Interim Protection) Act 1992 (NSW)
subject to conditions specifying the particular fauna and suspended the application of Pt 5 of the Environmental
taking into account the need for ongoing survey research Planning and Assessment Act 1979 (NSW) in respect of
and assessment to enable the Director-General to be kept logging operations being carried out in specific forests
up to date so that the conditions could be varied or the which included the Wingham Management Area.
licence revoked according to the evolving circumstances Pursuant to s 9 of the Act the Minister for Planning is the
determining authority in respect of logging operations
.APPEAL and may make his determination unconditionally or
subject to conditions. The Minister for Planning is not
This was a third party objector appeal under s 92c of the to make his determination until an environmental impact
National Parks and Wildlife Act 1974 against the granting statement has been obtained and exhibited by the
of a licence under s 120 of that Act to take or kill protected Forestry Commission and a report has been obtained from
fauna. The facts are set out in the judgement. the Director of Planning.
D R Parry and S Russel (agent), for the applicant. The Forestry Commission is not required to comply with
s 111 and s 112 of the Environmental Planning and
R A Conti QC and T S Hale, for the first respondent Assessment Act with respect to logging operations
(Director-General of National Parks and Wildlife). authorised by the minister’s determination.
N A Hemmings QC (solicitor) and G J Bartley, for the The Timber Industry (Interim Protection) Act came into
second respondent (Forestry Commission of New South force on 12 March 1992.
Wales).
Section 120 of the National Parks and Wildlife Act
P D McClellan QC, for the third respondent (Minister 1974(NSW) provides the authority for the issue of a
for Planning). general licence to take or kill or obtain any protected
fauna.
Judgement reserved
Section 99(1) of the National Parks and Wildlife Act
makes it an offence for a person to take or kill any
endangered fauna, but pursuant to s 99(2), a person shall
29 September 1994 not be convicted of an offence if he proves the act
constituting the offence was done under and in
TALBOT J. accordance with or by virtue of the authority conferred
by a s 120 licence.
A general licence may be issued by the Director-General,
INTRODUCTION a person or officer of the Service authorised by the
Director-General or any person holding an office, position
These proceedings are by way of appeal against the or rank prescribed.
decision of the Director-General of the National Parks
and Wildlife Service (the Service) to grant a licence to The following definitions in the National Parks and
the Forestry Commission of New South Wales (Forestry Wildlife Act are important:
Commission) to take or kill any protected fauna in the
course of carrying out forestry operations within the “Endangered fauna” means protected fauna of a
Wingham Management Area. The application for the species named in Sch 12 as threatened, as vulnerable
licence included an application to take or kill endangered and rare, or as a marine mammal. `take’, in relation
fauna. to any fauna, includes, hunt, shoot, poison, net, snare,
spear, pursue, capture, disturb, lure or injure, and
without limiting the foregoing also includes
The Ministry for planning has already determined that significant modification of the habitat of the fauna
logging operations may be carried on. The Minister and which is likely to adversely affect its essential
Director-General made their respective determinations behavioral patters.”
after considering an environmental impact statement and
a fauna impact statement, public submissions (including Amendments made to the National Parks and Wildlife
one from the applicant) following exhibition of the Act by the Endangered Fauna (Interim Protection) Act
proposal and further submissions from public authorities 1991 (NSW) on 17 December 1991 inserted ss 92A to
and reports from the respective department heads. 92E.
350
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
Section 92A requires the Director-General to appoint a Section 92B(5) requires the Director-General to exhibit
Scientific Committee charged with the task, where the application and invite submissions.
appropriate, to place the species of mammals, birds,
reptiles and amphibians known or expected to be present In considering an application made under s 92B, the
in New South Wales into Pt 1 (Threatened), Pt 2 Director-General must, pursuant to s 92B(6), take into
(vulnerable and rare) or Pt 3 (Marine Mammals) in account the following:
Schedule 12.
“(a) any fauna impact statement or environmental impact
Subsections (5) and (6) of s 92A specify the matters to statement;
which the committee is to have regard in deciding
whether to place a species of fauna in Pt 1 (Threatened) (b) any submissions received within the period specified
or Pt 2 (Vulnerable and Rare) in Schedule 12.Section under subsection (5);
92B provides that a general licence to take or kill
endangered fauna must not be issued except by the (c) the factors specified in section 92A(5) and (6); and
Director-General.
(d) Any reasons provided pursuant to section
In addition to the application fee, an application for such 92A(3)(d).”
a licence must be accompanied by a fauna impact
statement prepared in accordance with s 92D The Director-General may require any further
information concerning the proposed action and the
Under s 92D a fauna impact statement must: environment to be affected from the applicant or from
any public authority.
“(a) be in writing; and
The factors specified in s 92A(5) and (6) are as follows:
(b) be signed by the person who prepared it; and
“(5)... (a) whether the population of a species has been
(c) include, to the fullest extent reasonably practicable, reduced to a critical level;
the following:
(b) whether habitat of a species has been drastically
(i) a full description of the fauna to be affected by the reduced or modified;
actions and the habitat used by the fauna;
(c) whether a species may be in danger of extinction;
(ii) an assessment of the regional and statewide
distribution of the species and the habitat to be (d) whether a species may now be considered extinct
affected by the actions and any environmental but has been seen in the wild in the last 50 years;
pressures on them;
(e) any other matter with the Committee considers
(iii) a description of the actions and how they will modify relevant.
the environment and affect the essential behavioural
patterns of the fauna in the short and long term where (6).. (a) whether the population of a species is decreasing
long term encompasses the time required to because of over-exploitation, extensive destruction
regenerate essential habitat components; of habitat or other environmental disturbance;
(iv) details of the measures to be taken to ameliorate (b) whether the population of a species has been
the impacts; seriously depleted and its ultimate security has not
yet been assured;
(v) details of the qualifications and experience in
biological science and fauna management of the (c) whether the population of a species is still abundant
person preparing the statement and of any other but is under threat from severe adverse factors
person who has conducted research or investigations throughout its range;
relied upon.”
(d) whether a species has a small population contained
The person preparing a fauna impact statement must, in in restricted areas or habitats or thinly scattered over
accordance with s 92D(2), consult with the Director- a more extensive area;
General and must, in preparing the statement, have regard
to any requirements notified to him or her by the Director- (e) any other matter which the committee considers
General in respect of the form and content of the relevant.”
statement.
351
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Section 92A(d) requires that the Scientific Committee productive forest types. The conservation reserves will
provide reasons for its decision in relation to the revision incorporate 7,814 hectares of old growth hardwood
of Schedule 12 and any recommendation to add species forests in an undisturbed condition and will cover 13.3
to or omit species from Schedule 12. per cent of the total State forest area.
An applicant for a licence to which s 92B(5), if Noting that a natural hardwood forest consists of a mosaic
dissatisfied with the Director-General’s decision under s of areas at various stages of a dynamic ecosystem that
92B, may appeal to this Court pursuant to s 92C. passes through a cycle of germination, growth, maturity,
over maturity and decline, the Environmental impact
The applicant in these proceedings made a submission statement concludes that the proposed harvesting
pursuant to s 93B(5) and has appealed against the operations will convert the 10,750 hectares of old growth
decision of the Director-General. into re-growth forest over a period of twenty-seven years
and that the forest resource retained in the harvested areas
The objects of the Endangered Fauna (Interim will include:
Protection)Act are set out in s 2. The objects relevant to
these proceedings are: “- substantially undisturbed areas of existing forest
along drainage lines which will function as filter
“(b) to divide species of fauna into endangered, protected strips and protection for riparian habitats
and unprotected species;
- Over—mature trees with hollows to function as
(c) to ensure endangered species of fauna are only habitat trees or seed trees
harmed with the informed consent of the Director
of National Parks and Wildlife; - semi-mature trees that have the potential to grow
into large quota sawlogs or to develop into future
(d) to set criteria and performance standards for the fauna habitat trees dependent on future management
giving or withholding of that consent and to decision
guarantee fairness of treatment by providing an
appeal on the merits to the Land and Environment - non-commercial tress that are also non habitat tress.”
Court.”
In his determination under the Timber Industry (Interim
Protection) Act, the Minister has prescribed that those
areas identified in the Conservation Strategy in the
THE PROPOSAL environmental impact statement shall not be logged or
have roads constructed on them. A further thirteen
The activities proposed by the Forestry Commission in compartments are not to be constructed in them until
the Wingham Management Area are the harvesting of further assessment of conservation values, including old
10,750 hectares of old growth forest, the thinning of re- growth values of all Crown-timberlands and some
growth forests covering 14,650 hectares and the forested public land has been completed.
harvesting of about 13,400 hectares of re-cut forest which
was previously logged prior to 1977. Harvesting in these A wildlife corridor connecting a major conservation
areas between 1991 and 2025 is expected to yield reserve and the existing Weelah Nature Reserve to the
significant quantities of hardwood quota saw logs, small central ridge system is to be established at a central
saw logs, veneer logs, poles and miscellaneous products location within the Wingham Management Area.
such as pulp wood, salvage saw logs, sleepers and fencing
material. Existing roads and tracks over 596 kilometres The wildlife corridor connecting a major conservation
will be maintained and approximately 135 kilometres of reserve and the existing Weelah Nature Reserve to the
new roads will be constructed over the next 20 years. central ridge system is to be established at a central
location within the Wingham Management Area.
The Wingham Management Area covers an area of
195,000 hectares including 58,253 hectares of state The Minister’s determination also requires that in dry
forests, 6,000 hectares of Crown timberlands with most hardwood forest, an average of four habitat trees per
the balance being private property. Ten thousand six hectare shall be retained and in moist and New England
hundred and seventy-seven hectares of rain forest will hardwood forest, an average of six habitat trees per
be excluded from general purpose logging. hectare shall be retained. It also requires that clusters of
vegetation around the habitat trees shall be retained and
The Forestry Commission proposes to establish a system that sufficient recruitment trees shall be retained in order
of conservation reserves encompassing a minimum of to sustain the prescribed density of habitat trees in
five per cent of the area of each of the twenty-two perpetuity.
352
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
The Minister’s determination provides that habitat trees The Minister’s determination requires the Forestry
shall be identified by a person suitably trained in the Commission to carry out all fauna monitoring
recognition of trees having habitat values appropriate to programmes proposed in the environmental impact
that area. In calculating the average number of habitat statement and the fauna impact statement.
or habitat recruitment trees retained per hectare, all land
in conservation reserves or the subject of the moratorium In addition to the retention of discrete conservation
shall not be included. reserves, the specific wildlife corridor and habitat trees,
the conservation strategy described in the environmental
In addition, where there is evidence of Yellow-belied impact statement also allows for the retention of a variety
Gliders, individual feed trees shall be retained together of habitats by virtue of physical constraints on logging,
with an average of up to ten trees of feed trees species such as steep sided hills, streams, cliffs, moderate slopes
and an average of five mature bark shedding trees per and flat areas and the exclusion of rainforest and filter
hectare. strips to undisturbed areas within logged compartments.
It is proposed that the discrete conservation reserves be
The Minister requires pre-logging inspections to be linked by modified habitats and unmodified habitats
undertaken in old growth forests for the purpose of incorporating rainforest strips and regrowth forest and
identifying habitat trees of significance to the species that harvesting of adjoining areas will be delayed when
listed in Schedule 12 and for refugia to be retained where practicable in order to assist fauna conservation and
habitat areas of significance are identified. minimise the impact on water catchment values.
Special prescriptions for the Hastings River Mouse, cave The report by the Director of Planning critisised the
roosting bats and koalas are applied by the minister in conservation reserve system proposed in the
old growth forests, re-growth forests and re-cut forests. environmental impact statement for not targeting areas
where endangered fauna were recorded in the fauna
The environmental impact statement provides details of survey and for failing to take into account the variability
fauna monitoring and research to be carried out in within a forest type.
Wingham Management Area State Forests as follows:
However, although the Director considered that the
“- additional surveys for monitoring purposes to clarify energy and resource requirements of ground dwelling
the distribution and habitat usage of the Tiger Quoll, marsupials had not been accounted for, she concluded
Long-nosed Potoroo and Squirrel Glider that the proposed habitat prescriptions and conservation
strategy are able to maintain viable populations of
- further survey for the Hastings River Mouse hardwood forest dependent fauna and that the areas
reserved are suitable representative fauna habitat.
- monitoring bat populations in the abandoned gold
mines in the Cells River area by carrying out annual She also noted that rainforest is not suitable habitat for
or biennial surveys use by hardwood forest specialist fauna and that
consequently the reliance on retained rainforest for use
- cooperation with other research organisations or as fauna corridors is unlikely to achieve the goals that
individuals to take advantage of the relatively high the Forestry Commission intends such corridors to
numbers of Parma Wallaby found in the Wingham achieve.
Management Area State Forests to study their habitat
utilisation.” She recommended that, as the ability of habitat
prescriptions to maintain viable fauna populations has
In addition to those listed in the environmental impact not been demonstrated, it would not be prudent to approve
statement, the following species were highlighted for the entire proposal without such information.
further monitoring in the fauna impact statement:
She considered that the areas of high quality faunal
- Brush-tailed Phascogale habitat (particularly for fauna listed on Schedule 12)
should be identified and excluded from logging until such
- Yellow-bellied Glider- Koala time as regional assessment of conservation value has
been undertaken.
- Glossy Black Cockatoo
These concerns by the Director appear to be reflected in
- Sooty Owls. the condition of the Minister’s determination directing
the exclusion of twenty-four compartments from logging
The fauna impact statement also recommended or road construction until further assessment of
monitoring of bats generally. conservation values and additional regional studies of
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
other forested public lands are completed. (j) refugia to be retained where pre-logging inspections
identify habitat areas of significance to Schedule
The environmental impact statement and fauna impact 12 species;
statement were exhibited contemporaneously for the
purposes of the Minister’s determination pursuant to the (k) fauna monitoring programmes are required;
Timber Industry (Interim Protection) Act and the decision
by the Director-General. (l) post-logging inspections shall be carried out to
monitor the implementation of the prescriptions,
The determination made by the Minister was made after procedures and conditions imposed;
examining and considering the environmental impact
statement, which incorporated the fauna impact (m) the results of the monitoring programmes shall be
statement, representations made, submissions by the the subject of a report every three years;
Forestry Commission and the two reports of the Director
of Planning, and after consulting and considering the It is the proposal which has been approved by the
matters raised by the Minister responsible for the Forestry determination of the Minister which is the subject of the
Commission. application for a licence pursuant to s 120 for the National
Parks and Wildlife Act.
Although the application to the Minister was for a twenty-
six year period, he determined, after consideration of the When the Director-General made his decision on 15
reports and submissions, to approve only a ten year February 1994, he had the benefit of the determination
period. by the Minister and the decision report by the Threatened
Species Unit of the Service.
Rather than targeting endangered fauna habitat
requirements as the applicant contends, the conservation
strategy adopted by the Forestry Commission and
approved by the Minister involves logging based upon THE LICENCE APPLICATION AND
the provision of conservation reserves which achieve a BACKGROUND HISTORY
broad habitat protection for endangered fauna under the
following conditions: By letter dated 13 May 1992 the Director-General of the
Service, in response to a letter dated 15 April 1992 from
(a) logging and roading operations are excluded from the Forestry Commission notified requirements in respect
conservation areas; of the form and content of a proposed fauna impact
statement in accordance with s 92D(3) of the National
(b) twenty-three additional compartments are reserved Parks and Wildlife Act. The letter noted twenty-one
from logging until there has been further assessment; individual requirements in addition to the basic
requirement set out in s 92D(1).
(c) pre-logging inspections in old growth forests to
identify habitat trees of significance; A fauna impact statement dated 24 June 1992 was
prepared for the Forestry Commission by Dr Denny, the
(d) the provision of a wildlife corridor; Principal of Mount King Ecological Surveys. Although
the fauna impact statement used information gathered
(e) the preservation of habitat trees beyond that pro- for the purposes of the environmental impact statement,
posed in the environmental impact statement; it was completed before the environmental impact
statement was published so that it could be incorporated
(f) the retention of clusters of vegetation containing in the environmental impact statement as Appendix A.
understorey layers and ground logs around the habi-
tat trees; A series of fauna surveys were undertaken by the Forestry
Commission for the purpose of the environmental impact
(g) special provisions in regard to the Yellow-bellied statement. Fauna survey reports in respect of bats, reptiles
Glider, Hastings River Mouse, cave roosting bats and amphibians were published in January 1992. Further
and koalas; fauna survey reports in respect of mammals and birds
were published in March 1992.
(h) the retention of recruitment habitat trees in order to
sustain the retained density of habitat trees in In addition to the information generated by the
perpetuity;(i) specific limitations are placed on environmental impact statement surveys, the fauna survey
logging or road construction within or adjacent to reports also contain the results of other surveys and
rainforest; observations. The fauna impact statement contains
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NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
additional information on individual endangered species The report also identified and summarised the main
including distribution, population status, habitat fauna-related issues raised by the public submissions in
requirements and other characteristics. response to the exhibition of the fauna impact statement.
It also considered the determination made by the Minister
The environmental impact statement incorporating the and its relevance to the licensing process.
fauna impact statement was completed by the end of
August 1992 and was exhibited from 7 September 1992 The fauna impact statement listed twenty-four species
to 26 October 1992.The Forestry Commission lodged an of endangered fauna. By the time the Director-General
application for a general licence for the Wingham considered the application, two species of fauna
Management Area with the Director-General on 5 considered in the fauna impact statement were no longer
September 1992. on Schedule 12 whereas a further four species known or
likely to occur in the Wingham Management Area, not
A report prepared in accordance with s 9 of the Timber listed on Schedule 12 at the time of preparation of the
Industry (Interim Protection) Act was signed by the fauna impact statement, had subsequently been included.
Director of Planning on 28 January 1993. The Director A further seven species not detected in the fauna impact
of Planning prepared a further report dated 16 March statement fauna surveys had since been detected in the
1993 following her consideration of the matter that the 1992/1993 North East Forests Biodiversity Surveys.
Minister for Conservation and Land Management
(CALM) requested that the Minister for Planning take The thirty-three species considered by the Director-
into account. General in his report were ultimately the subject of the
licence issued on 15 February 1994. All of these species
On 18 March 1993 the Minister for Planning determined, were classified as vulnerable and rare species except one,
under s 9(1) of the Timber Industry (Interim Protection) namely the Hastings River Mouse, which has been
Act, to grant approval to the Forestry Commission to classified as threatened.
continue the logging operations outlined in the Wingham
Management Area environmental impact statement. Each species was considered in the report by reference
to the Scientific Committee’s reasons for the listing of
The Director-General of the Service published a report the species.
detailing the decision-making process for the Wingham
Management Area licence application on 15 February The Director-General determined that none of the
1994 and pursuant to which the application was granted. identified endangered fauna issues are such as to warrant
refusal of the licence application. The report asserted
Nine conditions were placed on the proposed licence. that the specific examination of the likely effects of the
Notice of the issue of the licence was published in the proposed operation for each species has demonstrated
Government Gazette. that adequate amelioration of the likely effects from
logging can be provided for each species.
The applicant, as a person who had made a submission Notwithstanding, it concluded that there are a number
pursuant to s 92B(5) of the National Parks and Wildlife of fauna issues which require further examination and
Act, commenced these proceedings by way of an appeal where further amelioration can be provided through
pursuant to s 92C on 14 March 1994. appropriate licence conditions. These included:
In his Decision Report, the Director-General stated that (a) Length of approval to be granted
the Service is satisfied that the fauna impact statement
substantially complied with the issued requirements of Noting that the Minister had reduced the period of
the Director-General. twenty-six years proposed by the Forestry Commission
to ten years to permit periodic monitoring of the
effectiveness of proposed ameliorative measures, the
Director-General determined that any approval for a
CONSIDERATION OF THE LICENCE licence should be limited to the same period given in the
APPLICATION Minister’s determination, that is until 18 March 2003.
The report prepared by the Director-General presented a (b) Species of fauna to be included in the licence
summary of the information contained in the fauna impact
statement and examined the manner in which the fauna Noting that the environmental impact statement/fauna
impact statement addressed the relevant statutory impact statement fauna surveyed did not detect a number
requirements in s 92D of the National Parks and Wildlife of species which have since been recorded in more recent
Act including the requirements notified by the Director- surveys and that knowledge of which species are known
General. or likely to occur in the Wingham Management Area will
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
continue to changer over time, the report concluded that A lack of details of the future monitoring and research
provisions should be made in the licence for its conditions programmes for the Wingham Management Area induced
to be varied to include new species and additional the conclusion that further assessment of the effectiveness
conditions placed on the licence for appropriate of the proposed ameliorative measures is clearly required
ameliorative measures. although the report concludes this would be more
appropriately undertaken as part of longer term research
(c) Old growth forests and monitoring programmes. In this respect, the report
concluded that further consultation between the Service,
Noting that neither the environmental impact statement the Forestry Commission and other agencies and fauna
nor the fauna impact statement considered the implication experts is warranted so that future priorities for
of the proposal to log 96 per cent of the un-logged monitoring and research can be determined.
hardwood on gentle slopes, the report recognised the
considerable importance of old growth forest for The above matters referred to in the report by the
endangered fauna. Following receipt of the licence Director-General were reflected in his published reasons
application, the Service further assessed the Wingham for granting the licence to take or kill endangered fauna
Management Area old growth forest compartments on within the Wingham Management Area and the licence
the basis of: conditions.
- known records of endangered fauna; At face value, the regimes established, respectively by
the Minister and the Director-General, reflect a
- the known importance of the forest type for endan- responsible and balanced approach to protect endangered
gered fauna; fauna having regard t the need to maintain ecologically
sustainable development to provide adequate supplies of
- overall site quality; timber for the community. The applicant challenges this
proposition.
- slope and forest height, as indicators of site quality;
- their area and distance from other old growth forest SOME PROCEDURAL ISSUES
(more isolated areas being more important;
At the commencement of the hearing Mr. McClellan QC
- the degree of disturbance, especially from past log- appeared for the Minister for Planning seeking to deal
ging, road construction and other uses; and, with issues arising in regard to the validity of the decision
by the Minister under the Timber Industry (Interim
- the relative extent and degree of disturbance for that Protection) Act. The Minister was formally joined as a
forest type within the Wingham Management area. party.
This assessment allowed the Service to develop a list of Mr. McClellan pointed out that issues raised in these
old growth forest compartments said to be ranked in order proceedings regarding the validity of the environmental
of their estimated endangered fauna habitat value. Taking impact statement and the fauna impact statement
a so-called precautionary approach which allows amounted to a challenge to the Minister’s decision. The
continuation of resource supply whereby old growth applicant thereupon amended the statement of issues to
forest compartments are ranked in terms of their likely delete any formal challenge to the validity of the
endangered fauna habitat value, the report adopted a environmental impact statement and to confine the issue
harvesting strategy in which compartments considered in regard to the fauna impact statement to its lack of
to be of lesser endangered fauna habitat value are factual and scientific adequacy. Mr. McClellan was
harvested before those of higher value. excused from further attendance after the issues had been
confined to the satisfaction of the Minister. The Court
(d) Species-specific amelioration was informed that a representative of the Minister was
present throughout the hearing.
Although the Minister’s determination recognised the
limitations of the general ameliorative measures proposed On the fourth day of the hearing, the applicant announced
in the fauna impact statement by providing a series of that he would no longer be represented by a solicitor and
specific ameliorative measures for increased habitat tree counsel and thereafter Ms Russell appeared as his agent.
retention and four identified species, the report Without reflecting on the forensic skills of Ms Russell,
considered that further ameliorative measures could be who carried out the task with impressive proficiency;,
usefully applied for a further ten particular species. the hearing became protracted as a consequence of
lengthy cross-examination and examination in chief,
(e) Monitoring and research some of which, under other circumstances, could have
356
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
been avoided. It is appropriate to observe in this context can be judged ultimately from the outcome of these
that it is not necessary for a party in class 1 or class 2 proceedings by the determination of the Court.
proceedings, where the rules of evidence do not apply,
to challenge every detail of the material presented by an During the course of the hearing evidence from several
opponent’s witness particularly where that witness is an witnesses and the tender of a number of reports, scientific
expert and the issues and arguments have been clearly material, and other literature was rejected. The Court
identified and established in written material already rejected much of that material on the basis of its
presented to the Court. That is not to say that some relevance. Other expert material was rejected because
propositions should not be challenged and discussed in the party seeking to rely on it, generally the applicant,
either oral examination or cross-examination in order for failed to appraise the other parties of the nature of the
the court to be satisfied that it properly understands the evidence even by the production of an outline or proof
propositions that are being put. of the evidence. The Rules and Practice Directions of
the Court are designed to allow all parties a proper
On final submissions, notwithstanding the amendment opportunity to prepare their case and to facilitate the
to the statement of issues, Ms Russell addressed the legal efficient conduct of the business of the Court. Where
adequacy of the fauna impact statement and submitted the established procedures are not followed or witnesses
that it failed to comply with statutory requirements. Mr. are called only at a time which is principally to meet the
Hale objected that the substance of this submission by convenience of the witness, the opportunity to present
Ms. Russell would be treated as going only to the factual evidence will be strictly limited, to the most exceptional
and scientific adequacy of the information in the fauna circumstances.
impact statement unless an application was made to the
contrary. No such application was made. The hearing extended over eighteen days including two
days for a useful and instructive inspection of the
When Mr Hale completed his submissions on behalf of Wingham Management Area and submissions over
the first respondent, Ms. Russell made application to re- several days. Thousands of pages of written exhibits have
open the applicant’s case to deal with the basis for the been admitted into evidence. The Court has before it a
Director-General’s decision. The applicant was in massive body of material which must be considered
response to a submission made by Mr Hale that the before the appeal is determined. Accordingly, the Court
process undertaken by the Director-General in has the benefit, or dare I say burden, of a far greater
determining the licence application was sustainable as amount of material than was available to the Service and
being based on adequate information and that it took into the Minister of Planning. It also has the benefit of further
account the required relevant factors. Ms Russell comment and opinion from representatives of the
submitted that there had not been an opportunity to Forestry Commission and the Service in respect of that
scrutinise the process undertaken by the Director-General further material. Unless the contrary is indicated, the
and accordingly the applicant had been denied natural whole of that evidence has been taken into account in
justice. The application was opposed by the respondents. making the determination.
David John Papps, the present Deputy Director (Policy
and Wildlife) of the Services, the member of Service’s
executive directly responsible for the administration of THE MAIN ISSUES
the Endangered Fauna (Interim Protection) Act 1991 and,
in that capacity, for the Service’s assessment of the The respondents described the discretion of the Director-
Forestry Commission’s environmental impact statement General to exercise the discretion whether or not to grant
and fauna impact statement for the Wingham a licence, either conditionally or unconditionally, as a
Management Area gave evidence in the first respondent’s wide one generally unconfined except as to the level of
case in chief and was recalled by the applicant in reply. information to be taken into account. Even after the
On both occasions he was subjected to examination in decision is made to grant a licence, the situation remains
chief and cross-examination. The application was dynamic. The Director-General has the power to amend
rejected. the licence to meet changing conditions or the emergence
of further faunal information regarding endangered
Alternatively, Ms Russell submitted that the Director- species. They advocate an approach based on practicality
General’s decision should be given no weight. It is not a in circumstances where the decision whether or not to
question of weight that should be given to the actual carry out logging has already been taken by the Minister
decision decision itself where an appeal such as this is for Planning.
by way of re-hearing. Rather it is a question of weight
to be given to the material upon which the decision The respondents also contend that it is not reasonably
appealed from was based, together with any other practicable to establish the actual presence of most
material before the Court. Whether or not the decision endangered fauna and, therefore, the task should be to
of the Director-General was properly and soundly based concentrate on habitat and the key environments for
357
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
known endangered fauna or those species suspected or scientific committee is adjudged by the respondents to
expected to be present in the Wingham Management usurp the role of the Service.
Area.
The applicant seeks stricter prescription for the selection
On the other hand, the applicant points to the lack of of suitable habitat and habitat recruitment trees. The most
scientific certainty in regard to seventeen of the thirty- significant disagreement in regard to habitat trees
three species covered by the proposed licence. His case involves the proposal by the applicant that a habitat tree
was largely directed to the adequacy of the fauna impact working group be established to identify retention
statement and the level of information obtained in requirements. In the meantime, the applicant seeks the
surveys undertaken for the purpose of the environmental retention of ten habitat trees per hectare in moist forest
impact statement. and six per hectare in dry forests. The proposal by the
applicant appears to take no account of, or give no
The respondents claim that any shortcomings in the fauna credence to, the Minister’s condition requiring expert
impact statement are at the very margin of relevance identification of habitat trees.
because the Court can have regard to the whole body of
evidence now before it. There is a conflict between the parties regarding the
criteria for determining the extent of habitat retention
The applicant argued that appropriate ameliorative for the Yellow-bellied Glider. The applicant demands
measures and conservation strategy cannot be determined surveys to identify the animal, whereas the Minister and
until the alleged anomalies and deficiencies in the fauna the Director-General concentrate on establishing a core
surveys and fauna impact statement have been rectified. feeding area where there is evidence of presence.
Applying the statement of the precautionary principle,
the applicant says the lack of full scientific certainty Again in the case of the koala, the applicant seeks to
should not be used as a reason for postponing measures specify the method for pre-logging surveys whereas the
to minimise impact. Minister and the Director-General are content to provide
for a response to evidence of regular koala activity. The
All parties relied on extensive written and oral expert applicant proposes a stricter regime than either the
evidence. Minister or the Director-General for retaining koala food
trees.
It will be instructive to refer to some of the detail of the
evidence in order to appreciate the true issues between For the purpose of the licence, the Director-General
the applicant and the respondents. included the Rufous Bettong, Long-nosed Potoroo, Red-
legged Pademelon, Parma Wallaby and the Tiger Quoll
Conditions of licence proposed by the Director-General as Critical Weight Range species. Critical Weight Range
seek to establish a protocol for ranking of blocks to be species are those small to medium-sized mammal species
logged in order of lower endangered fauna habitat value. in the weight range from 200 to 5,000 grams threatened
Under the Director-General’s conditions, no forestry by feral carnivores. Again the applicant seeks to specify
operation shall be carried out in any block until an detection techniques. The Minister made no reference
inspection has been carried out to identify potential or to Critical Weight Range species in his determination.
known endangered fauna habitats, and trees to be retained The Director-General proposed that no post harvest or
or areas to be preserved are marked and incorporated hazard reduction burning shall be undertaken, grazing
into any harvesting plan. shall be excluded and no poison baits laid in the areas
identified as potential habitat. In addition, the applicant
On the other hand the applicant proposes that a scientific seeks to exclude roading and logging from within 50
committee should be established with the responsibility metres of rainforest and grassed areas where there is a
to identify allold growth forests of lowest conservational rainforest understorey in areas of likely habitat of the
value sufficient to supply quota saw logs for the period Parma Wallaby, Long-nosed Potoroo and Red-legged
of the licence. The applicant calls for a moratorium upon Pademelon. The approach by the respective parties to
forestry operations in all remaining identified old growth the Brush-tailed Phascogale is similarly distinct.
forests until further assessment. In addition surveys for
endangered fauna conducted over three days in The Minister has directed, notwithstanding the species
appropriate seasons should be undertaken by appointees has not been detected in Wingham Management Area
of the scientific committee prior to roading or logging. and the fauna impact statement stated there appeared to
The scientific committee would also be charged with be no impact from logging, that the preferred habitat of
responsibility for the design of a conservation reserve the Hastings River Mouse should be protected from tree
strategy, undertaking population viability analysis and felling. The Service considers that further knowledge of
the design and implementation of monitoring of all this species is required before assumptions about impact
conditions of the licence. The establishment of the of logging can be made. The Director-General imposed
358
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
a condition that the Forestry Commission notify the respect of cave roosting bats and additional habitat tree
Service on becoming aware of a confirmed record of the retention for tree roosting and breeding species. The
species and thereafter to comply with any reasonable applicant’s witnesses were critical of this lack of
directions made by the Director-General. The applicant recognition and have urged the Court to provide for pre-
seeks to require a minimum effort of 1,000 trap nights in logging and roading surveys using prescribed techniques
each area of likely habitat and exclusion of forestry for detection for and following detection, the reservation
operations within 800 metres of known capture sites. of foraging habitat refugia. The applicant is also seeking
the establishment of a Bat Research and Monitoring Team
The Director-General and the applicant agree on an to devise species-targeted surveys and conservation plans.
appropriate description of the habitat for the Rufous
Scrub-bird and appropriate detection methods. The In regard to the Yellow-bellied Glider, the koala and the
Director-General advocates that a 300 metre radius Squirrel Glider, the applicant seeks to restrain logging
centred on confirmed habitat should be established, until viable populations have been encompassed into the
whereas the applicant seeks to exclude logging from the reserve system and research has ascertained the level of
whole compartment and adjacent compartments until a tolerable disturbance to habitat.
systematic survey is completed and a Rufous Scrub-bird
Conservation Plan is prepared and approved. It must be recognised that the Director-General also
provided that ameliorative prescriptions for endangered
The applicant proposes that the Director-General fauna shall continue to be developed through consultation
establish, at the cost of the Forestry Commission an Owl having regard to the conditions of the Minister’s
Recovery Team to identify the conservation requirements determination and the fauna prescriptions contained in
for endangered owls whereas the Director-General is the licence. The need to consult specialists and for
content to concentrate on protecting known nest and roost continuing monitoring is also spelt out in the conditions
sites. The applicant also recommends the employment imposed by the Director-General. He also called for
by the Forestry Commission of an owl expert to identify submission of details for the qualifications and experience
core habitats. of people selected by the Forestry Commission in
response to the Minister’s conditions which require the
The Director-General is content to require all practicable appointment of persons suitably trained to carry out
attempts to minimise disturbance to the species of specific tasks.
principal feed trees for the Glossy Black Cockatoo but
the applicant again requires pre-logging surveys in the The applicant submits that community involvement in
breeding season to identify nest sites. the ongoing process of evaluation, prescription and
monitoring should be maintained by prohibiting any
The argument in regard to the endangered frogs also amendment to the licence conditions until:
centres around the extent of survey required. The
Director-General provides no species-specific “(a) all groups and individuals who have made submis-
prescriptions for endangered frogs except the Sphagnum sions to the fauna impact statement have been pro-
Frog. vided with a document which sets out the amend-
ment and justifications for it;
The Director-General adopted the Service
recommendation that no measure specific to the Squirrel (b) 30 days have elapsed from the date of notification
Glider was required apart from the general ameliorative in (a) above; and
measures as the Minister’s determination provided further
protection of habitat for this species by retention of (c) The Director-General has considered all submis-
hollow-bearing den trees in harvesting areas. The sions received.”
applicant suggests pre-logging surveys and retention of
family group preferred habitat. The respondents see this provision as a fetter on the
exercise of the Director-General’s discretion. As a matter
The Director-General considered that the general of practicality, they say the capacity of the Director-
measures will provide broad protection for the Olive General to respond to critical situations would be unduly
Whistler and the Wompoo Fruit Dove. Whereas the constrained.
applicant is pushing for a specific 50 metre buffer around
all rainforest and within 200 metres of any localities of
the Olive Whistler. ADEQUACY OF THE FAUNA IMPACT
STATEMENT
There are no species-specific prescriptions for
endangered bat species in the conditions imposed by the The fauna impact statement is one only of a number of
Director-General. The Minister made provision only in tools to be used in determining whether or not a general
359
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
licence to take or kill endangered fauna should be issued species were thought to occur in the Wingham
by the Director-General. The applicant has approached Management Area, namely the Squirrel Glider, Hastings
this issue as if the fauna impact statement and the specific River Mouse, Red-legged Pademelon and the Brush-
survey and other information upon which it was based tailed Phascogale. The author did not expect that any of
is the only information upon which the Director-General these animals will be seriously affected by future
and thus the court, can rely in the determination of an management operations but identified the need for
application for a general licence to take or kill endangered ongoing survey/monitoring.
fauna. The applicant’s approach takes no account of the
ongoing opportunities for inspection, survey and Dr. York was responsible for the fauna survey undertaken
assessment which can lead to responsive changes to the on behalf of the Forestry Commission to cover all
conditions of any licence issued. mammal groups in the Wingham Management Area,
excluding bats. A general list of mammalian fauna known
Section 92D of the National Parks and Wildlife Act from the Wingham Management Area and surrounding
requires that the fauna impact statement include the region was compiled through literature review,
designated descriptions, assessments and details, to the opportunistic sightings, road survey and predator scat
fullest extent reasonably practicable. The approach by analysis. The survey report by Dr York concludes:
the applicant has been in effect to widen this requirement
to all things that are physically possible. “An important issue here is the overall conservation
status of the Wingham Management Area and its re-
It was necessary for the author of the fauna impact lationship to reserves in the region. While the diver-
statement to have regard to the practicabilities in terms sity of the State forest areas is high, all species re-
corded here are known from Werrikimbe National
of time and cost in proportion to the risk of failing to
Park to the north-west, and most in the other smaller
identify, and assess the impact upon, fauna in the short reserves nearby. Given the `peninsular’ nature of the
and long term. management areas, it is not functioning as a corridor
between large forested areas, but more as a buffer
Dr. Denny relied upon the results of surveys undertaken between Werrikimbe and the developed land to the
on behalf of the Forestry Commission within Mount south. The complex interspersion of rainforest
Royal, Glen Innes and Wingham forest management patches with moist and dry forest types provides ref-
areas. uge environments for fauna during wildfire and ex-
tended drought periods. Wingham Management Area
makes an important contribution to regional fauna
Dr. Allan York is a wildlife ecologist with the Forestry
conservation in the long-term because of its high habi-
Ecocology Section Wood Technology and Forest tat diversity, and will continue to do so through ac-
Research Division of the Forestry Commission. He tive management of the forest environments.”
developed the methodology to be used and procured
survey guidelines for the environmental impact statement Gregory Richards is a bat biologist in the Division of
and fauna impact statement. Wildlife and Ecology of the CSIRO in Canberra and he
is the author of the bat fauna survey of the Wingham
There were three basic strategies employed during the Management Area. Mist-netting, harp trapping, and an
surveys. First a broad area assessment (general survey) electronic detection were employed in the survey. Field
which aimed to identify general trends of species work resulted in an overall survey effort of 122 net nights,
distributions and locate areas which required “specialised 104 trap nights and sixty detection sessions (forty-five
survey”. Secondly, site specific survey (plot-based hours of recording). A total number of sixty-one forest
survey) was utilised to obtain quantitative data on the sites were surveyed. A total of nineteen species were
richness and relative abundance of species within areas recorded during the survey. Past surveys revealed fifteen
differing with respect to broad forest types, management species in the region, compared with the nineteen
history and altitude. Thirdly, “specialised survey” established by this survey. No threatened species within
techniques were used in habitats recognised as potentially Pt 1, Schedule 12 of the National Parks and Wildlife Act
important to certain faunal groups particularly species was noted in the survey but three species in the list of
considered to be highly conservation significant or “of Pat 2 (vulnerable and rare) were detected with the
special concern”. following comment:
No mammal species listed as “threatened” in Schedule “Minioptents australis and M schreibersii: Both spe-
12 of the National Parks and Wildlife Act were recorded cies are present in the Wingham Management Area.
during the survey and none were expected to occur within The recommendation to exclude human interference
the Wingham Management Area. However five species from the Cells River gold mine will assist in main-
taining number of these species. M schreibersii is
listed as “vulnerable and rare” were recorded during the
very common in the tropics.
survey (Tiger Quoll, Koala, Parma Wallaby, Yellow-
bellied Glider, Long-nosed Potoroo). A further four Myotis adversus: This species is present in the
360
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
Wingham Management Area, and recommendations In the opinion of Dr Tony Wallace Norton, A Research
for preservation of habitat have been made above. Fellow in Ecology and Biological Sciences at the
Australian National University, a much more carefully
Scoteanax meppellii: A reasonably common species designed and comprehensive biological survey is required
of coastal New South Wales; its listing in this part of for the area, giving emphasis to the remaining areas of
Schedule 12 is doubtful. Found at three sites in the old growth forests and their constituent biota. In his
Wingham Management Area (one un-logged, two opinion, the fauna impact statement is seriously flawed
logged).”
particularly because of the reliance on the limited extent
A total of twenty-four species of amphibians and fifty- of sampling over time and various forest ecosystems. He
one species of reptiles had been recorded previously expressed no confidence that the areas proposed to be
within the general area and eleven and twenty-nine set aside for conservation purposes are either appropriate,
species respectively were located during the survey. adequate, sufficient, adequately connected or adequately
Three species of reptile included in Schedule 12 buffered against disturbance.
(endangered species list) of the National Parks and
Wildlife Act at the time of the survey were found in the Dr. Michael Mahoney, a lecturer in the Department of
survey. In addition, two frogs listed on Schedule 12A Biology at the University of Newcastle, who has had a
(protected amphibians) were recorded. The revised continuing scientific interest in frogs over the past twenty
(interim) Schedule 12 was not available at the time of years, told the Court of his belief that the measures to
preparation of the report. ameliorate impacts are based on many assumptions which
are unsubstantiated. He expressed a number of other
It was noted that there is a paucity of information in the concerns including the absence of firm proposals for
literature concerning the effects of logging and associated research and monitoring. This concern and belief was
fire management on reptiles and amphibians. based upon the material in the fauna survey and the fauna
impact statement without taking account of further
The fauna impact statement is predicated on the information before the Minister and the Director-General
considerable difficulty in obtaining knowledge of whether and this Court. He recommended that some effort should
forestry operations will significantly affect the population be made to at least identify the habitat preferences of the
status of a particular species and providing definitive endangered frogs followed by mapping of such habitats
conclusions from the results of surveys. The information and an assessment of the availability and condition of
in the environmental impact statement was available. A these sites prior to continued logging. He was critical of
number of matters that Dr Denny was required to take the lack of protection to the headwaters of many streams
into account pursuant to s 92D of the National Parks and the proposed width of filter strips and buffer sizes.
and Wildlife Act or the requirements of the Director-
General were not reiterated where they had been covered Steve Phillips, as manager of the Environment Division
in sections of the environmental impact statement. of the Australian Koala Foundation, criticised the absence
of criteria to ascertain the use of the Wingham
Each known or expected endangered species in the Management Area by Koalas and techniques used for
Wingham Management Area is dealt with individually management of the population. To do this, in his opinion,
in a series of profiles. it is necessary to determine exactly what constitutes
critical habitat for the species at both the local and
Dr Des Nicholls, a reader in statistics and Dean of the regional management level together with the knowledge
Faculty of Economics and Commerce at the Australian of the size of the population being affected by the logging
National University, criticised the fauna impact statement activity.
for its failure to take account of other variables beside
broad forest type, altitude and management history and Harry Brian Hines, who holds a degree of Bachelor of
the limited period of the surveys. He was not available Natural Resources from the University of New England
for cross-examination. and is currently a consultant to the Service, gave evidence
for the applicant to the effect that the descriptions and
Dr. Hugh Phillip Possingham, an expert in the field of assessments of the impacts of forestry operations in the
applied mathematics, told the Court that the only way to Wingham Management Area are so affected by
determine the response of rare and threatened fauna to fundamental statistical flaws that the material dealing
forest activity was to carry out a population viability with fauna is unscientific and misleading. Recognizing
analysis which requires a detailed knowledge of the life the concept of reserving areas from harvesting, he
history and habitat requirements of the species with a stipulated that the occurrence of population and density
computer model which simulates population dynamics of species must first be known. He described the detailed
to assess the likelihood of extinction within a specified techniques required for various species. He conducted a
time frame. He had not visited the Wingham demonstration for the Court in the forest at night in
Management Area. respect of some of these techniques, including call back
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
and spotlighting. He explained that his object would be formal response to the fauna impact statement the
to determine the presence of the species and then follow Australian Museum stated that the fauna impact statement
that up by determination of the important areas. can be considered to have satisfied the legal requirements
in the sense that it has considered the factors specified in
Although the general purpose of the evidence from each s 4A of the Environmental Planning and Assessment Act,
of the above witnesses, called in support of the applicant’s satisfied the requirements of s 92D of the National Parks
case, was to show the extent of further survey and and Wildlife Act, and generally provided the information
assessment required, it also helps to identify the level of requested by the Director-General of the Service. The
inquiry and research that the applicant contends is to the Service reached a similar conclusion even though it was
fullest extent reasonably practicable within the meaning critical of some factual matters and conclusions reached.
of s 92D.
After taking account of the whole of the evidence in
Dr Lionel Wayne Braithwaite is a principal research relation to the adequacy of the fauna impact statement
scientist with CSIRO Division of Wildlife and Ecology and the information contained therein, I am satisfied that
in Canberra. Although, he agreed, it is scientifically the fauna impact statement does include to the fullest
possible to include a whole range of variables in a fauna extent reasonably practicable, the information required
impact statement, it is nevertheless logistically impossible by s 92B(1)(c) and s 92D(2).
to take all variables into account. Although the studies
undertaken for the fauna impact statement included only Bearing in mind that the fauna impact statement is only
a limited number of variables, they were appropriate to one of the tools to be used by the Director-General for
locate the species at that time. Dr. Braithwaite pointed the purpose of determining whether a licence should be
out that development since then means that more should granted, and further having regard to the disproportion
be done. between the cost, time and trouble involved in carrying
out a full scientific survey to the satisfaction of the
Dr Harold Edwin Parnaby is currently a consultant applicant and the risk associated with the issue of a
honorary research associate at the Australian Museum. licence conditioned to deal with any current lack of
In his opinion, the fauna impact statement bat survey knowledge, the fauna impact statement is a document
report and other material available to the Service do not which materially assists achievement of the object of the
provide an adequate basis to enable an informed and Act to ensure endangered species of fauna are only
unbiased assessment either of potential impact of the harmed with the informed consent of the Director-
proposed operations on endangered bat species, the General.
adequacy of the conservation reserve system or the
adequacy of proposed ameliorative measures. He also Recognizing, as Stein J did in Leatch v National Parks
attacked the lack of detailed information, methodology and Wildlife Service and Shoalhaven City Council (1993)
and experimental design of the bat species to utilise 91 LGERA 270 at 279, that information will continue to
regrowth forest. At this point Dr Parnaby says that the evolve over time, the fauna impact statement provides a
information necessary for formulation of quantitative proper basis for further inquiry and assessment. There
ameliorative measures does not exist. The stringent is no reason why the information in the fauna impact
criteria set down by Dr Parnaby only seeks to emphasise statement should not be supplemented by further
the extent to which the applicant’s witnesses failed to information required as a condition of the licence. The
appreciate what “to the fullest extent reasonably extent of further information about an additional eleven
practicable” means in s 92D(1)(c). species available to the Director-General by the date of
this decision demonstrates how this can occur.
Notwithstanding that there are admitted inaccuracies and
misleading statements in respect of some of the detail in Finally, the applicant relies on the amendment made to
the fauna impact statement, based upon the information the Environmental Planning and Assessment Act by the
available at the time of its preparation, it does assist the timber Industry (Interim Protection) Act omitting the
reader to appreciate what species are known or likely to words “protected fauna” wherever occurring and by
exist within the Wingham Management Area. It enables inserting instead the words “endangered fauna”. The
the reader to understand the likely habitat requirements Timber Industry (Interim Protection) Act requires the
of those species and to be informed about the potential Forestry Commission to obtain an environmental impact
impact from forestry operations. statement. A fauna impact statement is required only in
the circumstances referred to in s 77(3)(d1) of the
Apart from the measures to ameliorate the impacts of Environmental Planning and Assessment Act.
forestry activities, the Australian Museum review of the
fauna impact statement concluded that it generally Although the requirement for a fauna impact statement
satisfies the requirements of the Director-General of the under s 92B of the National Parks and Wildlife Act relates
Service and the National Parks and Wildlife Act. In its only to a general licence to take or kill endangered fauna,
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NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
s 92D(c)(i) requires that the fauna impact statement must express provision requiring consideration of it, the
include a full description of “the fauna to be affected”. adoption of a cautious approach in protection of
By limiting its address to endangered fauna, the applicant endangered fauna is clearly consistent with the subject
says the fauna impact statement is fatally flawed. matter, scope and purpose of the National Parks and
Wildlife Act.
In considering whether a fauna impact statement
complies with the provisions of s 92D, it is important to The applicant goes beyond the approach endorsed by
consider the purpose for which the fauna impact Stein J and contends that the precautionary principle
statement has been prepared. The underlying reason is ought to be applied and should be taken into account by
to enable the Director-General to take the information the Court in considering the merits of this appeal.
into account in determining whether a general licence to
take or kill “endangered” fauna should be issued. The In addition to the international environmental agreements,
object of inserting ss 92A to 92B in the National Parks the 1992 Intergovernmental Agreement on the
and Wildlife Act by the Endangered Fauna (Interim Environment and the Protection of the Environment
Protection) Act 1991 is apparent from the stated object Administration Act 1991 (NSW) referred to by Stein J
of the latter, namely, to ensure endangered species of (at 281), the applicant also referred to the National Forest
fauna are only harmed with the informed consent of the Policy Statement signed by the Prime Minister, the
Director-General of the Service. Premiers of all States except Tasmania and the Chief
Ministers of the Territories in 1992. The statement
The legislation also relaxed the prohibition upon harming explains the strategy to lay the foundation for ecologically
protected fauna where consents and approvals have been sustainable management of Australia’s forests. Reference
issued under the Environmental Planning and Assessment is made to the precautionary principle and the state
Act by inserting s 4A and s 77(3)(d1). The subsequent governments, in keeping with it, will undertake
amendment made to the Environmental Planning and continuing research and long-term monitoring so that
Assessment Act by the Timber Industry (Interim adverse impacts that may arise can be detected and
Protection) Act confirms the intent to require a fauna redressed through revised codes of practice and
impact statement where there is likely to be significant management plans.
effect on endangered fauna.
The only legislation drawn to my attention is the
Section 92D(1)(c) must therefore be read in context as Protection of the Environment Administration Act 1991.
requiring the fauna impact statement to deal with the It sets out as one of the objects of the Environmental
fauna the subject of an application under s 92B. Protection Authority, to protect, restore and enhance the
quality of the environment in New South Wales having
The environmental impact statement is not a superficial, regard to the need to maintain ecologically sustainable
subjective or non-informative document and is development. The Act states that ecologically sustainable
comprehensive in its treatment of the subject matter so development can be achieved through the implementation
far as the information available to the author extended at of four stated principles and programs including the
the time of preparation. It is certainly not a perfect precautionary principle. It does not apply here.
document and does not cover every conceivable topic or
explore every possible avenue. However it does alert The 1992 Intergovernmental Agreement on the
the Director-General, as the decision-maker, and Environment and the National forest Policy Statement
members of the public, such as the applicant, to the are not legislation and accordingly are no more than an
inherent problems of the proposal. To that end, the understanding between representatives of the
applicant, a host of others who have responded and both Commonwealth, States and Territories. They are series
the Minister for Planning and the Director-General have of policies and objects with broad, general agreement
had a long, hard, close look at the proposal and its on national strategy. They create no binding obligations
potential for impact. In accordance with the authorities upon the Director-General or this Court. They are heavily
summarised conveniently by the Chief Judge in Schaffer constrained to accommodate differing regional
Corporation Ltd v Hawkesbury City Council (1992) 77 requirements and budgetary priorities.
LGRA 21 at 31 and mentioned without dissent by Stein
J in Leatch (at 280) the fauna impact statement was If I understand the applicant’s position correctly, it is
adequate to fulfil its purpose. that this Court is obliged, as a matter of law, to take into
account Australia’s international obligations in
determining the application. No binding imperative upon
PRECAUTIONARY PRINCIPAL the Director-General to do so has been drawn to my
attention.
In Leatch (at 281-283), Stein J discussed the
precautionary principle nothing that, while there is no Furthermore, the statement of the precautionary principle,
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
while it may be framed appropriately for the purpose of a management decisions outside the control of the relevant
political aspiration, its implementation as a legal standard statutory authorities, namely the Service, the Forestry
could have the potential to create interminable forensic Commission and the Minister for Planning.
argument. Taken literally in practice it might prove to be
unworkable. Even the applicant concedes that scientific The conservation reserve strategy proposed by the
certainty is essentially impossible. It is only 500 years applicant will, in Mr Mackowski’s opinion, have the
ago that most scientists were convinced the world was effect of wholly negating the conclusions and the
flat. The controversy in this matter further demonstrates determination of the Minister for Planning. He contends
that all is not yet settled. What the applicant asks is that that the applicant is seeking to preserve every individual
decision making is based on conclusions that can be rather than to manage populations through periods of
validly drawn from the levels of scientific information habitat change by retaining refuge areas, critical habitat
available. The question is what that level should be in the components and spatial and temporal variations. In his
context of an application of a s 92B licence. opinion the applicant’s conditions are too concentrated
on small areas and “family”populations rather than
As Stein J noted, the 1992 Intergovernmental Agreement considering the survival of the species in a regional and
provides (at 3.5.1) in the application of the precautionary wider context.
principle, public and private decisions should be guided
by: I have given careful consideration to the whole of the
evidence presented by the applicant and the responses
“(i) careful evaluation to avoid, wherever practicable, thereto.
serious or irreversible damage to the environment;
and It is acceptable to allow logging to take place pursuant
to a s 92B licence subject to conditions which take
(ii) as assessment of the risk-weighted consequences account of the need for ongoing survey research and
of various options.” assessment which enables the Director-General to be kept
up to date so that the conditions of the licence can be
That is a practical approach which this Court finds varied or the licence revoked according to the evolving
axiomatic, in dealing with environmental assessment. circumstances.
The evidence in this case provides the opportunity for As Dr Braithwaite pointed out, it is not reasonably
the Court to make an informed decision. The practicable to rely on sightings to establish the presence
environmental impact statement and the fauna impact of most endangered fauna and the strategy should
statement and the subsequent reports have provided a concentrate on habitat and the key environments of
basis for evaluation of the potential for damage to critical significance to fauna.
endangered species. The Court also has the benefit of
further expert evidence to enable it to weigh the
consequences of various options. THE CONDITIONS
In addition to the experts already referred to, Dr Harry The Forestry Commission claims it has obtained approval
Recher, Associate Professor, Department of Ecosystem from the Minister for logging based upon the provision
Management at the University of New England, of conservation reserves which achieve a broad habitat
counselled for caution until the final impact of current protection for endangered fauna based on broad forest
logging acceptable to rely on existing research results types.
complimented to some extent by targeted survey work
for forest planning purposes. The Director-General reviewed that decision and
identified an hierarchy of compartments containing the
Mr Papps said population viability analysis is a useful most significant habitat. The hierarchy was not an issue
aid for conservation decisions as a computer based tool but the effectiveness of the reserve system was disputed
but it cannot replace the decision-making process in the by the applicant.
design of a conservation reserve strategy as the conditions
proposed by the applicant suggest. Instead the applicant seeks to re-open the Minister’s
determination by creating a joint scientific committee to
Mr. Mackowski is a wildlife ecologist employed by the carry out rapid interim assessment and population
Forestry Commission. He is critical of the conditions viability analysis. I accept the evidence from Dr Recher
for licence proposed by the applicant in that they purport and others that rapid assessment will serve no useful
to set up the scientific committee as a regulatory body, purpose. Further, although population viability analysis
with no accountability, and substitute a regime of surveys may be regarded by some as a useful computer based
and moratoria on logging which takes the forest tool, that opinion is not reflected by its widespread use
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NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
to date. It may be appropriate to carry out Population group had recently been established for the same purpose
Viability Analysis in respect of particular species. That and the proposal by the applicant would duplicate the
can be determined by the Director-General as required. work of this group at a local level.
She has sufficient resources and expertise available to
her to assist with such decisions. The functions of the The Director-General maintains the rate of retention
Director-General as an independent umpire appointed by specified by the Minister and incorporates a general
the Endangered Fauna (Interim Protection) Act should description of the evaluation process. According to the
not defer to such a committee. district forest at Taree, between twelve and twenty-three
trees per hectare are being retained in practice. The
No credible argument has been raised to substantiate prescription for retention of habitat trees must be
limiting the duration of the licence to eighteen months. considered in the overall context of the conservation
It is logical and consistent for the term to be sychronised strategy taking account of the areas reserved from
with the determination of the Minister as the approvals logging. Dr Recher recognised that logging in
will work in tandem. Even so, the Director-General has accordance with the Minister’s conditions would mean
wide powers under s 133 and s 134 of the National Parks that there would be a greater number of trees retained
and Wildlife Act. than the base number specified, and that he would not be
surprised if that was as high as twenty trees per hectare.
There is no need for there to be any special provision However, he went on to say that the number of trees itself
regarding inconsistency between the conditions of the is relevantly meaningless without reference to the quality
licence and the Minister’s determination even if, as a of what is retained. His concern was to prevent logging
matter of law, which I doubt, the procedures and of old growth forest pending further assessment. The
conditions of the licence can prevail. The logging number of habitat trees retained will do nothing to resolve
operations are required to be in accordance with both this dilemma.
approvals according to the relevant legislation.
However, the hierarchy for logging of compartments
The applicant, in his draft conditions, seeks to impose a established by the licence will give the opportunity for
strict regime for pre-logging surveys for endangered proper reflection and further assessment. I do not propose
fauna. The conditions attached to the issued licence to increase the specification for retention of habitat trees
require inspections to be carried out to identify potential requested by the applicant.
or known endangered fauna habitats. The inspections
proposed by the Director-General recognise that further I agree with the applicant that habitat and recruitment
information obtained on habitat and impacts of logging trees should be permanently marked and maintained.
and roading will be utilised to amend and update the
conditions of licence. It is reasonable to expect that, The effect of the prescription proposed by the applicant
following inspection, carried out jointly by in regard to the Yellow-bellied Glider and the koala will
representatives of the Forestry Commission and Service, be to render logging untenable having regard to the broad
that the Director-General will respond in an appropriate distribution of the species. The Director-General targets
and responsible way. It is also reasonable to expect that feed trees where the species has been detected as an
the Director-General may, in exercise of her discretion, interim prescription. It is reasonable to expect that any
requisition the surveys the applicant specifies. That will final prescription will follow from the results of pre-
depend on circumstances as they evolve. The applicant’s logging inspection and monitoring. Again the ultimate
arguments in this respect do not take sufficient account solution will remain in the hands of the Director-General
of the dynamics of the situation and the unfettered power and it is appropriate, as I have already said, for this to be
and discretion left with the Director-General as the the case.
statutory umpire. The Director-General has the capacity,
the power and a duty to act promptly and effectively. Conditions proposed by the applicant in respect of the
This is recognised by the Endangered Fauna (Interim Critical Weight Range species are not appropriate, in the
Protection)Act stated object to give the Director-General absence of pre-logging and roading surveys contemplated
and the Minister an emergency power to stop work where by the applicant and which I have already rejected as a
protected fauna is at risk (s2(b)). The Courts expects condition of the licence. However, once again there is
and relies upon the Director-General to fulfil her duties no reason why the Director-General should not
in accordance with the statutory framework. implement constraints in terms of the proposed conditions
when habitat for these species is identified. The Director-
In regard to specification for retention of habitat trees, General should not be phased by the complaint from the
the applicant again seeks to create a separate group of Forestry Commission that a proposal for a buffer zone
experts to identify retention requirements. or protection strip is unjustified.
Mr Mackowski explained that a widely representative The same conclusion is appropriate in regard to logging
365
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
bans and survey for carnivorous marsupials, the Squirrel Area that can be disadvantaged by burns, whereas seven
Glider, the Glossy Black Cockatoo, the Hastings River can be advantaged. The results of surveys of the bat
Mouse and the Rufous Scrub bird. fauna and the herpatofauna in the Wingham Management
Area do not provide a clear picture of the effects of fire
A ban on poisoned baits should extend to the Brush-tailed on these two groups. Concern is expressed about the
Phascogale in addition to the Tiger Quoll. impacts of grazing and burning upon small native fauna
including the Hastings River Mouse. The fauna impact
The Forestry Commission has already initiated the statement contemplates that it may be necessary to restrict
establishment of an owl recovery team, the work of which further stock grazing in the future.The question of grazing
would be duplicated by the proposal from the applicant. and fire control has not been fully or adequately resolved
The Director-General will be cognisant of any findings to the extent necessary to enable the Court to make a
by this team and has the capacity to implement its final determination in either respect. Accordingly, I
recommendations through the licence procedures. propose to take a conditions approach and incorporate
conditions relating to grazing and fire hazard appreciating
The Forestry Commission accepts pre-logging and that the Director-General can amend the licence if
roading surveys should be conducted in respect of the required after the matter has been further investigated.
Sphagnum Frog. The licence conditions already
incorporate a requirement for the establishment of filter
strips along drainage lines. Protection of catchments DETERMINATION
should extend to areas above where the Green-thighed
Tree Frog and Great-barred River Frog are located. Accordingly, pursuant to s 92c of the National Parks and
Wildlife Act and s 39 of the Land and Environment Court
Given that there will be no logging of rainforests and Act 1979 (NSW), I determine that a licence, subject to
that the Olive Whistler and Wompoo Fruit Dove only the conditions attached, shall be issued in accordance
use wet sclerophyll forest adjacent to rainforest for with the provisions of s 120 of the National Parks and
foraging, a further fixed 50 metre buffer appears to be Wildlife Act to take or kill the endangered fauna listed in
unnecessary. the conditions.
The Director-General’s conditions include specific The conditions are generally in accordance with those
reference to the continuing development and attached to the licence issued by the Director-General
implementation of fauna conditions, fauna prescriptions with amendments to take account of the changes
and monitoring programmes after consultation. suggested by the applicant and adopted in my reasons.
The suggestion by the applicant that all groups and As I have already indicated, and it will be spelt out, the
individuals who made submissions in response to the specific fauna prescriptions in the conditions are to apply
exhibition of the fauna impact statement be consulted pending the development of ameliorative prescriptions
before any conditions of licence are amended is totally after further surveys and investigation and an agreed
impractical as a felter on the capacity of the Director- ongoing consultative procedure between the Forestry
General to respond diligently and expeditiously to any Commission and the Service. The report by the Director-
change in circumstance or new information. General expressly contemplates that this will be done
and the Court expects and relies upon responsible action
The applicant seeks to prohibit grazing throughout the by the Director-General in this respect.
Wingham Management Area and restrict post-harvest or
hazard reduction burning in known or likely habitat for The exhibits may be returned.
a Critical Weight Range species. Dr Recher’s major
problem with the conditions drafted by the Director- I grant leave for any party to file minutes of formal orders,
General is that they do not really address post-logging to be settled, if required.
management. Post-logging burns, hazard reduction
burning, post-logging grazing (cattle, bees) have great
effect on the biota of the original forest. In his opinion, MATTER NO 10151 OF 1994 JERRY NICHOLLS v
those species most affected are those that require DIRECTOR NATIONAL PARKS AND WILDLIFE
substantial area of old growth. These organisms, he says, SERVICE AND FORESTRY COMMISSION OF
are greatly affected by the proliferation of edge species NEW SOUTH WALES AND MINISTER FOR
as well as changes in forest structure, species composition PLANNING ATTACHMENT TO JUDGEMENT
and fire regimes.
GENERAL LICENCE CONDITIONS
The fauna impact statement states there are seventeen
mammal species known from the Wingham Management 1. Duration of licence
366
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
This licence will expire on 18 March 2003 or on such Tree Frog Litoria brevipalmata
other date as the licensee may be notified by the Director- New England Tree Frog Itoria subglandulosa
General. Sphagnum Frog Philoria sphagnicolus
Giant Barred Frog Mixophyes iteratus
2. Operations to be in accordance with licence Southern Barred Frog Mixophyes batbis
ReptilesStephen’s Hoplocephatus
Forestry operations shall not be carried out other than in Banded Snake stephensii
accordance with the conditions of this licence or as those
conditions may be varied by the Director-General from 5. Reporting of endangered fauna
time to time, and with the endangered fauna-related
conditions set by the Minister for Planning in Schedule 5.1 Unless otherwise specified in this licence, the
1 of the determination, as may be amended by the Forestry Commission shall notify the Service in writing
Minister from time to time. of any new confirmed records of endangered fauna
detected within the Wingham Management Area by the
3. Delegation of functions Forestry Commission officers or contractors or which
are reported to the Forestry Commission, within seven
The Director-General and the Managing Director may days, or where the record is for a species of endangered
from time to time delegate in writing their respective fauna which is not a species mentioned in condition 4
functions contained in this licence as appropriate to above, as soon as practicable after the initial detection
officers of their respective agencies. of that species.
4. Endangered fauna licence 5.2 Where a confirmed record is for a species of
endangered fauna which is not a species mentioned in
The species of fauna to which this licence applies are: condition 4 above, the Forestry Commission shall, with
respect to that species, comply with any direction made
Part 1 - Threatened by the Director-General or his delegate in relation to that
Mammals species.
Hastings River mouse Pseudonys oralis
6. Old growth forest inspections and surveys
Part 2 - Vulnerable and rare
Mammals 6.1 This condition applies to the following blocks and
Tiger Quoll Dasyurus maculatus compartments with the management area:
Brush-tailed Phascogale Phascogale tapoatafa
Parma Wallaby Macropus parma Block Compartments
Rufous Beltong Aepyprymnus nifescens 1 209
Red-legged Pademelon Thylogate stigmatica 2 55
Long-nosed ptoroo Potorous tridactylus 3 245
Yellow-bellied Glider Petaurus austratis 4 248
Squirrel Glider Petamus norfolcensis 5 266, 267
Koala Phascolasctos cinereus 6 282, 283
Yellow-bellied Sheathtail Bat Saccolaimus flaviventris 7 144, 145, 146
Eastern Little Mastif Bat Mornopterus norfolkensis 8 260, 258
Goldgen-tipped bat Kerivoula puapuensis 9 285
Large-footed Mouse-eared Bat Myotis adversus 10 287
Greater Long-eared Bat Nyclophilus timoriensis 11 275, 269, 268
Little Bent-wing Bat Miniopterus aystralis 12 227, 225
Common Bent-Wing Bat Miniopterus schreibersii 13 289, 290
Great Pipistrelle Falsistrellus lasmaniensis 14 216
Greater Broad-nosed Bat Scotemax nsepellii 15 63
Large Pied Bat Chatinoiobus dweyeri 16 235
BirdsGlossy Black Cockatoo Calyptorhynchus lathami 17 278, 279
Sooty Owl Tyto Tengbricara 18 229
Masked Owl Tyto novachollandiae 19 186, 226
Powerful Owl Ninax strenua 20 38
Rufous Scrub-bird Atrichomis nifescens 21 207, 208, 204
Olive Whistler Pachycephala olivacea 22 40, 41
Wompoo Fruit Dove Ptilinopus magnificus 23 307, 305
AmphibiansGreen-thighed 24 151, 149
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
25 264, 265 management area. In the case of joint inspections, the
26 250 Service may elect whether or not to participate in an
27 254, 251, 252 inspection. The Forestry Commission will notify the
28 236 Service at least ten working days in advance of its
29 243, 239 intention to undertake a pre-logging inspection;
30 176
31 303, 306 (b) the Forestry Commission has appropriately marked
32 174 trees or areas in that compartment for restrictions
Block Compartments on the forestry operations to be carried out as speci-
33 75 fied by the person or persons in (a) above and as
34 213, 121 may be required by any other relevant restrictions
35 242 specified in other conditions of this licence; and
36 223, 228
37 241 (c) the Forestry Commission has incorporated into any
38 286 Harvesting Plan prepared for that compartment the
39 244 restrictions referred to in (b) above and the Forestry
40 233, 232 Commission ensures that such restrictions are complied
41 240 with by persons carrying out forestry operations in that
42 231, 230 compartment.
6.2 Compartments are listed in 6.1 above in blocks 6.5 The Forestry Commission shall, as a component of
which are comprised of one or more compartments. The the further assessment of concentration values required
ordering of blocks is predominantly arranged to place in cl 6 of the determination, undertake further fauna
those of highest endangered fauna habitat value towards surveys of old growth forest within the management areas
the end of the list, although operational requirements of using methods and relevant experts approved by the
the Forestry Commission and issues of Aboriginal and Director-General. These surveys will specifically target
European heritage have also been taken into account in those species of endangered fauna for which old growth
order of listing. forest constitutes optimum habitat.
6.3 The order of working for the management area shall 7. Fauna Prescription
generally be arranged so that blocks of lower endangered
fauna habitat value have forestry operations carried out 7.1 Until further prescriptions are developed in
in them before blocks of higher endangered fauna habitat accordance with condition 8 below, the following interim
value, commencing with block 1 and ending with block prescriptions shall apply to all forestry operations in the
42 as listed in 6.1 above. This order of working can only management area.
be amended by joint agreement of the Director-General
and the Managing Director and only where the 7.2 Habitat Trees
Commission can demonstrate that operational
requirements render such an amendment to be necessary A. Habitat trees will be live, hollow-bearing trees of
for maintaining timber supplies within the management the largest size class which are likely to have the greatest
area. longevity. Habitat trees will be well spaced consistent
with the size of canopy gaps required for adequate
6.4 For all the compartments listed in this condition, a regeneration and growth for the species of these forest
compartment shall not have forestry operations carried types. Stags shall not be counted as habitat trees.
out in it until:
B All practical precautions shall be taken to avoid tree
(a) an inspection has been carried out in that compart- heads landing adjacent to identified habitat trees. In
ment to identify potential or known endangered gapping operations tree heads shall be moved to the centre
fauna habitats. Inspections will be carried out ei- of gaps prior to burning. Wherever possible, disturbance
ther as an independent inspection by a person ap- to understorey vegetation and logs shall be minimised
proved by both the Director-General and the Man- when moving tree heads. In forests with a xeromorphic
aging Director or as a joint inspection by a person understorey, tree heads will be removed from within
nominated by the Director-General and a person approximately a 5 metre radius of identified habitat trees.
nominated by the Managing Director. In forests with mesic understorey, heads of trees within
a radius of 10 metres of identified habitat trees are not to
Persons performing inspections must be suitably qualified be burnt, or alternatively, if a ground burn can be
and experienced in the identification of the habitats of sustained in these forest types, trees heads will be
endangered fauna known or likely to occur in the removed from within approximately a five metre radius
368
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
of identified habitat trees. found, forestry operations may resume but a minimum
of 5 koala food trees must be retained within the 100
C Retained recruitment habitat trees should be selected metre radius area referred to in A above. If a koala was
where possible so as to sustain the floristic diversity of recorded in a preferred food tree, that tree must be
existing retained habitat trees in perpetuity. Recruitment included among the retained trees.
habitat trees shall be selected to provide a representative
sample of all age classes present. D. If regular koala activity is detected but less than 20
per cent of trees examined have koala faecal pellets
D All habitat trees and recruitment habitat trees shall underneath and no further koalas are observed, limited
be permanently marked. E. Monitoring of the effective- forestry operations may resume under the following
ness of habitat and recruitment tree retention shall be conditions:
carried out.
(i) trees with evidence of regular koala activity shall
7.3 Yellow-bellied Glider be retained;
A. When implementing cl 9 of the determination, an (ii) a minimum of fifteen koala food trees per hectare
inspection shall be undertaken in the vicinity of the shall be retained within a 100 metre radius area re-
Yellow-bellied Glider record or where there is evidence ferred to in A above;
of Yellow-bellied Gliders to determine the feed tree with
the most active V-notch markings or other incisions made (iii) if the density of koala food trees per hectare does
in the bark by Yellow-bellied Gliders. The tree with the not permit the above specified number of trees to
most recent V-notch markings or other incisions shall be be retained, all existing koala food trees shall be
the centre tree of an area with a 100 metre radius, that retained.
area constituting a core feeding area for the glider.
E. If regular koala activity is detected and more than
B When calculating the number of trees per hectare one koala is observed or more than 20 per cent of trees
to be retained pursuant to cl 9 of the determination, a examined have koala faecal pellets underneath, forestry
minimum of thirty trees of the feed tree species and fifteen operation, including post-harvest and hazard reduction
bark-shedding trees of the largest size class present shall burning, shall be excluded from the 100 metre radius
be retained with the 100 metre radius area referred to in area referred to in A above and the Director-General
A above. (The bark-shedding tree species include notified.
Flooded Gum and the Blue, Grey, Red and White Gum
groups.) For the purposes of A and E above, koala food trees shall
be leafy, with broad crowns and represent the range of
C Where the density of feed trees species does not sizes greater than 40 centimetres dbh present and be
permit the number of trees specified in B above to be selected with preference to Tallowwood Eucalyptus
retained, all esisting trees of the appropriate species shall microcorys, Small-fruited Grey Gum E. propinqua, Grey
be retained. If there is more than one marked V-notched Gum E punctata, Forest Red Gum E tereticomis, and
or otherwise incised tree within the 100 metre radius the Sydney Blue Gum E saligna. If these species are not
additional V-notched or incised trees may be counted as present in adequate numbers, food trees should be
feed trees to be retained. selected from the following species: Blackbull E pilularis,
Flooded Gum E grandis and Red Mahogany E resinifera.
7.4 Koala Koala food trees retained pursuant to this condition may
be counted as habitat trees or habitat recruitment trees
A If a past record of a koala is accurately known or if for the purposes of other conditions.
evidence or regular koala activity is detected prior to or
during forestry operations, operations will be excluded For the purposes of A and E above, regular koala activity
from within 100 metres of the location of the record or is indicated by the presence of koala faecal pellets beneath
the location of the evidence of activity until the trees or by characteristic claw scratch marks on the trunks
assessment in part B below has been undertaken. of trees.
B. The extent of habitat use and preferred food trees 7.5 Critical Weight Range species - Tiger Quoll, Rufous
within the 100 metre radius area referred to in A above Bettong, Long-nosed Potoroo, Red-legged Podemelon
shall be assessed using a method approved by the and Parma Wallaby
Director-General. Paragraph C,D or E below will then
apply, as appropriate to the outcome of that assessment. Critical Weight Range species are those small to medium-
sized mammal species in the weight range from 200 to
C If no further evidence of regular koala activity is 5,000 grams and which are threatened by predation or
369
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
competition from feral carnivores. For the purposes of In sub-catchments where records of Sooty or Powerful
this licence, these species include Tiger Quoll, Rufous Owls are known, 100 metre wide riparian reserves shall
Bettong, Long-nosed Potoroo, Red-legged Pademelon be established along all second and third order streams.
and Parma Wallaby. Filter strips shall be extended along first order streams
to reserve moist gully vegetation types as far as these
In areas identified in the inspections referred to in types extend upslope.
condition 6.4 above as being potential habitat for a
Critical Weight Range species, no post-harvest or hazard No tree shall be felled within or, as far as is practicable,
reduction burning shall be undertaken, and grazing shall into these reserves or filter strips.
be excluded from these areas as soon as practicable.
(The order of streams is that shown on the relevant
A. No poisoned baits for feral animal control purposes topographic map for the management area as published
shall be laid in compartments where Tiger Quoll or by the Central Mapping Authority at the scale of
Brushtailed Phascogale are known or likely to occur or 1:25,000).
in contiguous compartments.
7.9 Glossy Black CockatooAll practicable attempts shall
Hastings River Mouse be made to minimise disturbance to seeding forest oaks
greater than ten years of age throughout areas subject to
The Forestry Commission shall immediately notify the forestry operations.
Service on becoming aware of a confirmed record of
Hastings River Mouse within the State forests in the 7.10 Sphagnum Frog
management area. The Forestry Commission shall
comply with any reasonable direction made by the Sphagnum Frog habitat is found in wet sclesophyll forest
Director-General in relation to that species. Pending any and rainforest where the substrata is characterised by
such direction, no forestry operations shall be conducted permanent soakages or seepages.
within an 800 metre radius of known capture sites.
Grazing shall be excluded from these areas as soon as Filter strips shall be established on all drainage lines
practicable. within catchments under 100 hectares where Sphagnum
Frogs are known to occur. Where Sphagnum Frogs are
Rufous Scrub-bird known to occur away from streams, filter strips shall be
expanded to incorporate the locations of those records.
Critical Rufous Scrub-bird habitat is considered to occur These filters strips shall also be extended to include any
in those areas which have a minimum area of 1 hectare potential Sphagnum Frog habitat located in areas adjacent
and which are rainforest or wet sclerophyll forest to known locations. Where soakages or seepages within
generally above 600 metres ASL and which have such potential Sphagnum Frog habitat located away from
extremely dense cover 2 to 50 centimetres above ground, filter strips, a 20 metre buffer shall be established around
moderate cover 50 to 100 centimetres above ground, a them from which forestry operations shall be excluded.
moist microclimate at ground level and abundant leaf Log dumps shall not be located within 100 metres of
litter. The inspections pursuant to condition 6.4 above any buffers or filter strips established pursuant to this
shall, when occurring in the habitats above, include prescription.
identification of locations of potential Rufous Scrub-bird
habitat. Where known records of Sphagnum Frog occur grazing
shall be excluded from these areas as soon as is
Forestry operations shall be excluded from identified practicable.
potential habitat until surveys (including playing of taped
Rufous Scrub-bird calls and listening for callback) have (Drainage lines shall be those shown on the relevant
been undertaken in spring or early summer to confirm topographic map for the management area as published
the presence or absence of Rufous Scrub-birds. by the Central Mapping Authority at scale of 1:25,000).
There shall be an exclusion zone of 300 metres radius 7.11 Green-thighed Tree Frog, Giant Barred Frog and
centred on any confirmed Rufous Scrub-bird habitat Southern Barred Frog
within which forestry operations shall not be carried out.
Forestry operations in all catchments above where the
7.8 Sooty Owl and Powerful Owl Green-thighed Tree Frog or Great-barred River Frogs are
located shall only proceed in accordance with
All forestry operations shall be excluded from a zone of prescriptions issued by the Director-General subsequent
100 metres radius centred on known nest and roost sites to being informed of their locations.
of Sooty or Powerful Owls.
370
NICHOLLS V DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE
7.12 Bats 8.1 above. Where necessary, specialists approved by the
Director-General shall be consulted in the development
Where known nest or roost sites of endangered bat species of these programmes.
are detected foraging habitat shall be reserved. Such
refugia should be a minimum of 250 metres wide, and 8.3 The prescriptions and monitoring programs
encompass a transect from gully to ridge top inclusive. developed in 8.1 and 8.2 above, once developed and
Areas selected for reserves will be undisturbed and of jointly approved by the Director-General and the
high site quality wherever possible. Such areas could managing director, shall be implemented by the Forestry
comprise refugia set aside for other endangered fauna. Commission throughout the Management Area.
Logging, roading and burning will not be permitted in
such reserves. The minimum length of such reserves 9. Qualifications of persons
shall be 350 metres.
Details of the qualifications and experience of people
8. Fauna prescriptions and monitoring programs selected by the Forestry commission under conditions
9(c), 10, 12(b)(iii), and 12(c)(ii) of Schedule 1 of the
8.1 Having regard to appropriate fauna conditions of determination will be provided to the Director-General
the determination and the fauna prescriptions in condition prior to their commencement of the nominated work.
7 above, the ameliorative prescriptions for endangered
fauna species sensitive to forestry operations shall 10. Grazing
continue to be developed following further survey and
investigation and an agreed ongoing consultative No further grazing permits shall be issued and no existing
procedure to be adopted jointly by the managing director permits shall be renewed by the Forestry Commission
and the Director-General. Where necessary, specialists for grazing in the management area.
approved by the Director-General shall be consulted in
the development of these prescriptions. 11. Exclusion zones
8.2 Having regard to appropriate monitoring programme Where an exclusion zone is identified it shall be clearly
conditions of the determination, the structure and design delineated in the field by tree marking as for filter strips,
of programmes to monitor the effectiveness of the recorded on harvesting plans and preferred management
prescriptions mentioned in 8.1 above shall be developed priority maps, identified to contractors in the field, and
using the same consultative procedure as described in no trees shall be felled into such zones.
371
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
DEFINITIONS
The following definitions are used in this licence:
Forestry Commission: Means the Forestry Commission of New South Wales.
Director-General: Means the Director-General of National Parks and Wildlife
Determination: Means the approval of the Wingham Management Area granted by the
Minister for Planning on 18 March 1993 under s 9(1) of the Timber Industry
(Interim Protection) Act 1992
Environmental Impact Statement: Means the environmental impact statement for the Wingham Management
Area dated August 1992 prepared by Truyard Pty Ltd.
Endangered Fauna: Means the fauna species listed on Schedule 12 of the National Parks and
Wildlife Act 1974, as may be amended from time to time.
Fauna Impact Statement: Means the fauna impact statement dated 24 June 1992 for the Wingham
Management Area prepared by Dr Martin Denny of Mount King Ecological
Surveys.
forestry operations: Includes logging, road construction, prescribed burning, feral animal control
and weed control operations.
Managing Director: Means the managing director of State Forests of New South Wales.
Service Means the National Parks and Wildlife Service of New South Wales.
State Forests of New South Wales: Is the registered business name of the Forestry Commission.
Appeal dismissed
Solicitors for the applicant: Berveling & Co.
Solicitors for the first respondent (Director-General of National Parks and Wildlife): National Parks and Wildlife
Service.
Solicitors for the second respondent (Forestry Commission of New South Wales): Forestry Commission of New
South Wales.
Solicitor for the third respondent (Minister for Planning): C C Hanson.
TFMN
372
[LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES]
LEATCH
v.
NATIONAL PARKS AND WILDLIFE SERVICE AND
SHOALHAVEN CITY COUNCIL
Stein J
1-5, 23 November 1993
Fauna Protection - Licence to take or kill endangered The need for the licence arose from the granting of
fauna - Road construction - Objector appeal against development consent by the Council to itself for the
grant of licence - Fauna impact statement - Adequacy construction of a link road through North Nowra to the
- Factors to be taken into account - Benefits of devel- Princes Highway, including a bridge over Bomaderry
opment to be balanced against likely loss of endan- Creek. The licence application was supported by a fauna
gered species - National Parks and Wildlife Act 1974 impact statement pursuant to s 92A of the National Parks
(NSW), ss 5, 92, 92A-92D, 99, 120. and Wildlife Act. The Director-General granted the licence
subject to conditions and an objector who had made a
Section 92 of the National Parks and Wildlife Act 1974 submission appealed, submitting that the fauna impact
(NSW) makes the Director-General of the National Parks statement was invalid or legally inadequate as failing to
and Wildlife Service the authority for the protection and comply with s 92D of the Act. In particular, it was
care of fauna. Under s 92A a scientific committee was submitted that there had been a failure to include “to the
appointed to review and continue to review Schedule 12 fullest extent reasonably practicable” a description of the
of the Act which provides a list of endangered fauna. fauna affected by the actions and the habitat of the fauna.
Subsections (5) and (6) specify matters which the
committee must have regard to in deciding to place Held: (1) The same tests of adequacy in relation to
species of fauna on the schedule as “threatened” (Pt 1) environmental impact statements under the Environmental
or “vulnerable and rare” (Pt 2). Section 92B provides Planning and Assessment Act 1979 (NSW) should apply
that only the Director-General may issue licences to take to fauna impact statements under the National Parks and
or kill endangered fauna. In considering a licence Wildlife Act
application the Director-General must take into account
the fauna impact statement, any submissions received, Schaffer Corporation Ltd v Hawkesbury City Council
the factors listed in s 92A(5) and (6) and any reasons (1992) referred to.
given by the scientific committee under s 92A(3)(d). The
Director-General may require further information and (2) Like an environmental impact statement a fauna
may grant the application unconditionally or subject to impact statement is not the decision but rather a tool to be
conditions or may refuse it. Section 92C provides a right used in the decision making and may be supplemented by
of appeal to the Land and Environment Court by an further information.
applicant for a licence to which s 92A applies or by any
person who made a submission under subs (5) thereof. (3) In the circumstances of the present matter the
Section 92D sets out the requirements for a fauna impact omission to advertise certain further information which
statement. Section 99 provides substantial penalties for had been provided to supplement the fauna impact
taking or killing endangered fauna without authority of statement did not cause the fauna impact statement to be
a licence. Section 120 enables licences to be issued to legally inadequate, or otherwise fatally flaw the decision
take or kill any protected fauna in the course of carrying making process.
out specified development or activities.
(4) In the present matter the fauna impact statement
On 25 February 1993, Shoalhaven City Council applied included a reasonably thorough discussion of the
to the Director-General of the National Parks and Wildlife significant issues and likely faunal consequences and was
Service for a licence to take or kill endangered fauna. not legally inadequate.
373
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
(5) The “precautionary principle”, under which, if there pursuant to s 92B(5) of the National Parks and Wildlife
are threats of serious or irreversible environmental Act 1974 (NSW) as amended (the Act) may appeal to
damage, lack of full scientific certainty should not be the Court if dissatisfied with the decision. Ms May
used as a reason for postponing measures to prevent Leatch objected by filing the subject Class 1 application
environmental damage, is not an extraneous consideration in court on 23 July 1993.
for the purposes of Pt 7 (Fauna) of the National Parks
and Wildlife Act 1974. The need for a licence arises from the granting of
development consent by the Council to its own proposal
(6) A licence to take or kill endangered fauna should to construct a link road through North Nowra to the
not in most circumstances be “general” in its coverage Princes Highway. The proposed road includes a 60 metre
of endangered species but should specify the species bridge over Bomaderry Creek. In support of its
which it permits to be taken. application for a licence the Council submitted a fauna
impact statement to the National Parks and Wildlife
(7) The period of a licence to take or kill endangered Service pursuant to s 92B(2) of the Act. The fauna impact
fauna should be confined, so far as reasonable, because statement was advertised in February 1993 and a number
of possible changes in the physical environment and state of submissions, including one from the applicant, were
of scientific knowledge. received by the National Parks and Wildlife Service.
After consideration of the licence application the National
(8) In the present matter the purely economic analysis Parks and Wildlife Service sought further information
of the respective alternative road routes had resulted in a from the Council. A supplementary submission was
failure to include natural values in the evaluating balance. provided by the Council on 19 May and on 24 June 1993
the Director-General formally notified the Council that
(9) Upon examination of all of the evidence the Court a general licence under s 120 of the Act had been granted
could not be satisfied that a licence under s 120 of the for a period of ten years subject to a number of
National Parks and Wildlife Act 1974 to take or kill ameliorative conditions. Notice of the issue of the licence
endangered fauna should be granted to the Council in was published in the Government Gazette of 2 July 1993.
the present matter.
THE LEGISLATIVE FRAMEWORK
APPEAL
The National Parks and Wildlife Act was extensively
This was an objector appeal under s 92c of the National amended in terms of its fauna protection provisions by
Parks and Wildlife Act 1974 against the granting of a the enactment of the Endangered Fauna (Interim
licence under s 120 of that Act to take or kill endangered Protection) Act 1991 (NSW): The amending legislation
fauna. The facts are set out in the judgment. was in part a response to the decision of the Court in
Corkill v Forestry Commission (NSW) (1991) 73 LGRA
I J Dodd (solicitor), for the applicant. 126, affirmed in the Court of Appeal in Forestry
Commission (NSW) v Corkill (1991) 73 LGRA 247.
B J Preston, for the respondent.
It may be useful to attempt a brief summary of the relevant
J J Webster, for the second respondent (the Council) provisions of the Act. Section 92 makes the Director-
General the authority “for the protection and care of
Judgment reserved fauna”. A scientific committee was appointed pursuant
to s 92A to review and continue to review Schedule 12
of the Act, which provides a list of endangered fauna.
Section 92A(5) and s 92A(6) respectively specify matters
23 November 1993 which the committee must have regard to in deciding to
place species of fauna on the schedule as threatened (pt
STEIN J. 1) or vulnerable and rare (Pt 2). Only the Director-
General may issue a licence to take or kill endangered
fauna (s 92B). Section 5 of the Act defines “take” as
INTRODUCTION follows:
Shoalhaven City Council (the Council) applied to the “‘take’, in relation to any fauna, includes hunt, shoot,
Director-General of the National Parks and Wildlife poison, net, snare, spear, pursue, capture, disturb, lure
Service for a licence to take or kill endangered fauna. or injure, and without limiting the foregoing also
The Director-General granted a general licence subject includes significant modification of the habitat of the
fauna which is likely to adversely affect its essential
to conditions. Any person who made a submission
behavioural patterns;”
374
LEATCH V NATIONAL PARKS & W ILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL
It may be seen that the definition includes habitat General, the factors set out in s 92A(5) and s 92A(6)
modification discussed in Corkill. (which include “any other matter which the Committee
considers relevant”), any reasons of the committee
In considering a licence application the Director-General provided under s 92A(3)(d) and any further information
must, pursuant to s 92B(6), take into account the fauna provided under s 92B(6). Section 92C(2) makes it clear
impact statement, any submissions received, the factors that s 92B(6) does not limit s 39 of the Land and
listed in s 92A(5) and s 92A(6) and any reasons given by Environment Court Act 1979 (NSW). Relevantly this
the scientific committee under s 92A(3)(d). Subsection section provides:
(6) allows the Director-General to require “further
information concerning the proposed action and the “(2) In addition to any other functions and discretions
environment to be affected from the applicant ...”. The that the Court has apart from this subsection, the Court
Director-General may grant the application shall, for the purposes of hearing and disposing of an
unconditionally or subject to conditions or refuse the appeal, have all the functions and discretions which the
application (s 92B(8)). Section 92D sets out the person or body whose decision is the subject of the appeal
requirements of a fauna impact statement. Subsection had in respect of the matter the subject of the appeal.
(1) provides:
(3) An appeal in respect of such a decision shall be by
(b) be signed by the person who prepared it; and way of rehearing, and fresh evidence or evidence in
addition to, or in substitution for, the evidence given on
(c) include, to the fullest extent reasonably practicable, the making of the decision may be given on the appeal;
the following:
(4) In making its decision in respect of an appeal, the
(i)a full description of the fauna to be affected by the Court shall have regard to this or any other relevant Act,
actions and the habitat used by the fauna; any instrument made under any such Act, the
circumstances of the case and the public interest.
(ii) an assessment of the regional and statewide
distribution of the species and the habitat to be (5) The decision of the Court upon an appeal shall, for
affected by the actions and any environmental the purposes of this or any other Act or instrument, be
pressures on them; deemed, where appropriate [to be that of the Director-
General?]
(iii) a description of the actions and how they will modify
the environment and affect the essential behavioural Pursuant to s 17(ea) of the Land and Environment Court
patterns of the fauna in the short and long term where Act appeals under s 92C of the Act are assigned to class
long term encompasses the time required to 1 of the jurisdiction of the Court.
regenerate essential habitat components;
Besides what might be broadly described as the “merit”
(iv) details of the measures to be taken to ameliorate issues arising on the appeal, the applicant seeks to argue
the impacts; that the fauna impact statement does not comply with
the Act, specifically with the requirements of s 92D(1)(c)
(v) details of the qualifications and experience in and s 92D(2). I will return to this issue later in my
biological science and fauna management of the reasons.
person preparing the statement and of any other
person who has conducted research or investigations
relied upon.” BACKGROUND
Substantial penalties are provided by s 99 of the Act for For some years the Council have perceived the need for
taking or killing endangered fauna - imprisonment and/ a new road link across Bomaderry Creek between the
or a fine. It is a defence if the act was done under or in expanding residential areas of North Nowra and the
accordance with a general licence issued under s 120. Princes Highway. It is said that congestion at the
The latter section permits licences to be issued to take or intersection of Illaroo Road and the Princes Highway,
kill any protected fauna in the course of carrying out just north of the bridge over the Shoalhaven River, is
specified development or activities. A general licence becoming chronic and the intersection approaching finite
may, but need not, specify the species of fauna which capacity. A new link will relieve this situation and defer
may be taken or killed under its authority. highway upgrading for around five years. I accept
Council’s position that a new road link is justified.
On any appeal under s 92C the Court must take into Various options were discussed in a Council Situation
account the factors set out in s 92B(6) viz, the fauna Paper issued in December 1990.
impact statement, submissions received by the Director-
375
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Following this paper, in or around August 1991, Council Creek. As Dr. Kevin Mills says this means that it is found
made a development application to itself, as consent nowhere else in the world. Already it has been noted
authority, to permit the construction of an east/west road that many Zierla plants in the area of the proposed road
and bridge over the Bomaderry creek linking North have been vandalised and destroyed. Some Zierla
Nowra to the Princes Highway. The route of the link bacuerlenii are growing a small distance to the north of
was from the intersection of Pitt Street and Illaroo Road the proposed road and are proposed to be fenced off.
(in the west) to Nerang Road (to the east) and joining the The Australian Heritage Commission has placed a nearby
Princes Highway approximately 2 kilometres north of area of the Bomaderry Creek on the Register of the
the Shoalhaven River. The bridge crossing of the creek National Estate because of the occurrence of Zierla. In
would be located in the vicinity of an existing weir and addition, the plant is listed as an endangered species under
water pipeline, and the road would approximately follow Schedule 1 of the Endangered Species Protection Act
an electricity transmission line easement. The application 1992 (Cth).
was accompanied by a review of environmental factors
in two volumes prepared for the Council by consultants, The comment might be made that it is somewhat strange
Mitchell McCotter & Associates. that under State law rare and endangered plants are not
accorded similar protection to rare and endangered fauna,
The review of environmental factors discussed four especially since flora is important for biological diversity
potential alternative routes concluding that the preferred and advances in medical science sometimes involve the
route had clear overall benefits as it provided a necessary application of rare plants.
level of traffic service, a positive benefit to cost ratio and
“acceptable environmental impacts”. The document The review of environmental factors found that diverse
made an assessment of the alternatives on economic, fauna communities were expected to be present in the
environmental and social or community factors and gorge area. Fauna were briefly surveyed. A number of
ranked each option from A to D. For the purposes of species listed in schedule 12 of the Act were known, or
this case it is probably sufficient to concentrate on likely, to occur in the study area. However, the review
Council’s preferred alignment and the northern of environmental factors (at 4.12) stated that the impact
alternative following West Cambewarra Road from its of the road on fauna “is likely to be negligible”. To protect
intersection with Illaroo Road to the Princes Highway the ecological values of the area the report proposed a
(or Moss Vale Road). The review of environmental number of mitigation measures. An ecological
factors estimated the cost of this route at $1.1 million assessment of Dr. Kevin Mills was appended to the review
and the preferred alternative at $1.8 million. The cost/ of environmental factors. It examined the vegetation
benefit analysis, however, was found to be positive for communities, the presence of threatened plant species
the preferred route and slightly negative for the northern and fauna of conservation importance. His assessment
alternate route. The lengths of each road varied, the stated that “the Bomaderry Creek gorge is probably one
proposed route being 1.9 kilometres and the northern of the most valuable areas of fauna habitat within the
alternative 1.6 kilometres. Noowra town limits” (at 13). The report also noted that
the Yellow-bellied Glider could be present in the area.
Flora and fauna impact was assessed at a most favourable In assessing the options, the document concluded that
A rating for the West Cambewarra Road link compared the northern alternative avoided the creek gorge, the
to a B for flora and C for fauna for the proposed road. dissection of the Bomaderry Creek bushland and also
Among the various community factors assessed was damage to rare plant species. By contrast, the Council’s
“traffic flows”. In this regard the preferred route was preferred route had potential impacts on rare plants and
assessed as A and the northern alternative route graded on the recreational values of the gorge (at 11).
as C. The preferred route was said to provide significant
benefits in terms of vehicle travel time and cost savings. In June 1992 the Council asked the Director-General for
The northern option was seen as non cost effective a specification for a fauna impact statement and this was
because traffic would still be attracted to the Illaroo Road provided on 14 July 1992. The three page document
route to Nowra township. required, inter alia, “a full fauna survey” along the
proposed route and all feasible alternatives. It mentioned
The review of environmental factors described a number the targeting of endangered species known or likely to
of diverse vegetation communities in the area, particularly occur in the area including the Yellow-bellied Glider,
towards the Bomaderry Creek gorge. A number of rare Diamond Python and the Tiger Quoll.
plant species were identified. For example, the
Eucalyptus Iangleyi occurring immediately to the north It appears that in October 1992 the Council resolved to
of the creek at the picnic area; Dampeira rodwayana, a approve the development application “subject to the
small shrub occurring in the Scribbly Gum woodland imposition of appropriate conditions of consent, provided
and Zierla bacuerlenii (Rutaceae) a rare and endangered recommendations of a fauna impact statement were
plant occurring only in bushland around the Bomaderry satisfactory”. By letter dated 3 February 1993, Council
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applied to the National Parks and Wildlife Service for a consultants, Dr. York and Mr. Daly, had heard the call of
licence under s 120 of the Act to take or kill endangered the Giant Burrowing Frog in May 1992 when spotlighting
fauna, enclosing copies of a fauna impact statement for gliders. Although not expressly required, no mention
prepared in October 1992 by its consultants Mitchell was made of the occurrence in the fauna impact
McCotter & Associates. On 25 February 1993, Council statement. The position where the frog was heard was
resolved to grant conditional development consent to its north of the proposed road alignment (to the west of the
road proposal. Condition 2 thereof provides: gorge) and on the edge of the Grey Gum woodland
adjacent to a dry scrub community dominated by White
“This consent is conditional upon the obtaining of a Kunzea Ambigua and Tea-tree. The report concluded
Licence pursuant to s 120 of the National Parks and that on balance the proposed road best met environmental
Wildlife Act [as amended by the Endangered Fauna and economic objectives. The integrity of the gorge could
(Interim Protection) Act the New South Wales Na- be protected by a range of ameliorative measures,
tional Parks and Wildlife Service prior to any works
including an extensive buffer conservation zone.
commencing.”
The fauna impact statement and licence application were The further information provided was not advertised,
advertised by the National Parks and Wildlife Service although news of it appears to have leaked and further
and a number of public submissions were public submissions were received by the National Parks
received,including one from the present appellant. The and Wildlife Service. Ms Dovey again assessed the
fauna impact statement concluded that the site was the material, concluding much of it to be inadequate.
habitat of endangered species. However, as it was isolated However, the Director determined to grant a general
from other areas of suitable habitat, the long term viability licence subject to conditions.
of the species was questionable. Impacts on endangered
fauna were not considered sufficient to prevent the While the process of the Court on appeal is by way of
construction of the proposed road. Mitigation measures re-hearing it is useful to examine the decision-making
were recommended. process of the National Parks and Wildlife Service. The
decision-making documents (exhibit A, documents 37
The public submissions drew attention to a number of and 38) considered that direct impacts of the development
matters including the rare plant species. The Shoalhaven would likely result in the killing or injuring of fauna.
branch of the Australian Conservation Foundation was Indirect impacts of the development included habitat
critical of the fauna impact statement and drew attention fragmentation and disturbance to individual animals from
to the likely occurrence of the giant Burrowing Frog noise and light. Document 37 contains the following
which had been added to Schedule 12 by the scientific conclusions:
committee in December 1992, after the fauna impact
statement was prepared. The Total Environmental Centre, “Overall, it is considered that the additional infor-
in a detailed submission, was also critical of aspects of mation provided by Shoalhaven City Council, when
the fauna impact statement and drew attention to the combined with the information in the fauna impact
precautionary principle. statement, is adequate to permit a decision to be made
on this licence application. Based on this informa-
tion, it is considered that the taking or killing of en-
The fauna impact statement was assessed by the National dangered fauna is likely to occur if the road proposal
Parks and Wildlife Service’s Natural Resources Co- proceeds. This is especially the case in relation to
ordinator (Southern Region), Ms Liz Dovey. She noted populations of Yellow-bellied Glider and Tiger Quoll,
that the Diamond Python, referred to in the specification, even though precise estimates cannot be given as to
had been removed from Schedule 12 in December 1992 current population distribution and abundances.
but the Giant 10 Burrowing Frog had been added and
would need to be assessed. The officer critically It is also considered that the definite need for the road
examined the fauna impact statement and found it has been demonstrated by Shoalhaven City Council
deficient in a number of aspects. As a result the National and it is noted that development approval under the
Parks and Wildlife Service requested further information Environmental Planning and Assessment Act 1979
has been granted for the construction of the road.
from the Council (5 May 1993). In response a further
report of Mitchell McCotter was provided to the National It is also considered that there is uncertainty as to the
Parks and Wildlife Service by the Council. long-term viability of the local endangered fauna
populations which are likely to be affected by this
The report referred to the Giant Burrowing Frog but stated road. Long-term development plans for the locality
indicate increasing pressures on existing populations
that since the gorge area had been substantially degraded
which may become locally extinct irrespective of
it was “not considered prime habitat for the species”. whether or not the road is constructed. This is espe-
The document continued: “... it is considered therefore cially the case in relation to populations of Yellow-
that the proposed road will not impact upon this species.” bellied Glider and Tiger Quoll.
The further information did not note that Council’s
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Generally, the ameliorative prescriptions proposed by on the appeal.
Council as described in the fauna impact statement
and Council’s additional information provide an ad- Both the Director-General and the Council submit that
equate amelioration of any adverse effects which the the fauna impact statement can be amplified by further
road may have on endangered fauna.”
information sought and provided under s 92B(6) of the
Act. They also submit that the standard required for a
THE HEARING fauna impact statement is not intended to be as rigorous
as that required for an environmental impact statement
The Director-General, represented by Mr. Preston, under the Environmental Planning and Assessment Act
tendered the whole of the relevant National Parks and 1979 (NSW).
Wildlife Service documentation including the review of
environmental factors, the fauna impact statement, the I am unable to discern any ambiguity in the ordinary
public submissions and further information provided by meaning of the statutory provisions. Accordingly the
the Council. No oral evidence was called. The applicant, extrinsic materials relied on and contained in the
Mrs. Leatch, represented by Mr. Dodd, tendered reports explanatory note and Second reading Speech are of no
of Mr. Terence Barratt, an environmental scientist with assistance. Even if taken into account they don’t take
the Water Board and ex-National Parks and Wildlife the issue of construction any further. I fail to perceive
Service officer (and a member of the Shoalhaven branch why any different or lesser standard should be applied to
of Australian Conservation Foundation); Mr. Garry a fauna impact statement as opposed to an environmental
Webb, an expert on the giant Burrowing Frog and Dr. impact statement. While the scope and purpose of the
Roger Coles, an expert on bats. The Council, represented two Acts (the National Parks and Wildlife Act and
by Mr. Webster, tendered reports form two of its officers, Environmental Planning and Assessment Act) is different,
Messrs Murray and Aber; Dr. Kevin Mills, ecological the purpose of both statements is similar - to assist the
and environmental consultant; Mitchell McCotter, decision-maker in its task and to inform the public and
planning and environmental consultants; Dr. Alan York, enable its participation. A fauna impact statement is a
a wildlife ecologist with State Forests and Mr. Robert narrower document than an environmental impact
Nairn, a transport planner and economist. statement, confining itself to impacts on endangered
fauna. This is made plain by s 92D(4) which provides
The parties also tendered a number of plans, photographs, that if an environmental impact statement, prepared under
background reports and documentation. It may be Pt 4 or Pt 5 of the Environmental Planning and
reasonable to summarise the thrust of the evidence as Assessment Act, addresses the matters set forth in s
principally concerning the impact of the road proposal 92D(1), no separate fauna impact statement is required.
on the Yellow-bellied Gliders living in the vicinity and
their habitat and the likely impact of the road on the Giant In my opinion the same tests of adequacy developed in
Burrowing frog. Besides these species it may be relation to environmental impact statements should apply
concluded that the evidence does not establish that any to fauna impact statements. Nothing in the subject matter,
other species of endangered fauna is likely to be taken scope and purpose of the National Parks and Wildlife
or killed in the course of carrying out the development. Act, particularly the amendments inserted by the
No licence is therefore required for those animals. The Endangered Fauna (Interim Protection) Act, lead to a
applicant placed emphasis on the perceived lack of contrary conclusion. Indeed, the reverse is the case. This
exploration of the alternative northern route via West means that the tests laid down in the authorities, in
Cambewarra Road as a factor to balance against the particular Prineas v Forestry Commission of New South
application for a licence to take or kill endangered fauna. Wales (1983) 49 LGRA 402, are relevant.
Mr. Preston (supported by Mr. Webster) submits that the
THE VALIDITY OF THE FAUNA fauna impact statement, together with the supplementary
IMPACT STATEMENT information, is adequate in law to comply with the
requirements of the Act and satisfy the twin goals of the
The applicant submits that the fauna impact statement is exercise. Assuming a deficiency in the fauna impact
invalid or legally inadequate as failing to comply with s statement, Mr. Preston says that it would be ridiculous if
92D(1)(c) of the Act. In particular, it is submitted that this could not be overcome by the provision of additional
there was a failure to include “to the fullest extent information referred to in the closing words of s 92B(6).
reasonably practicable” a description of the fauna affected While acknowledging that the additional information was
by the actions and the habitat of the fauna (s 92D(1)(c)(i)). not advertised he notes that there is no statutory
Particular reference is made to the non-inclusion of the requirement to advertise such material.
Giant Burrowing Frog. Should the fauna impact
statement be found to be legally inadequate, the applicant The issue of the jurisdiction of the Court in a class 1
submits that there is no jurisdiction in the Court to embark appeal to consider the validity of an environmental impact
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LEATCH V NATIONAL PARKS & W ILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL
statement was exhaustively examined by the Chief Judge however, is of concern. The failure to advertise the further
of the Court, Pearlman J in Schaffer Corporation Ltd v information may have deprived members of the public
Hawkesbury City Council (1992) 77 LGRA 21 at 28.30. of the opportunity to participate. Although not required
The decision of the Court of Appeal did not affect her by the legislation, it would have been preferable for the
Honour’s judgment on the issue. I agree with Pearlman National Parks and Wildlife Service to have re-advertised
J’s analysis of the legal situation and her conclusion: especially since a new species was included - the Giant
Burrowing Frog. But it is clear that most, if not all,
“But what is in issue in this case is not a question of objectors who made written submissions were aware that
relief for breach, but a question of whether or not, information had been provided by the Council to the
exercising the functions of a consent authority, the National Parks and Wildlife Service, although not its full
Court would grant consent to the development appli- content. Further comprehensive public submissions were
cation. In pursuing that issue, one of the questions
made to the National Parks and Wildlife Service. This
for determination is whether or not there is a valid
environmental impact statement on which a grant of is not a class 4 judicial review proceeding under the
consent by the Court is (sic) so exercising its func- Environmental Planning and Assessment Act where the
tions can be founded.” discretion inherent in s 124 is applicable, nor is it a
proceeding brought under s 176A of the National Parks
Mr. Dodd submits that the additional information cannot and Wildlife Act alleging a breach of the Act. In my
be relied on to bolster the environmental impact opinion the omission to advertise the further information
statement. He says that the ability of the Director-General does not cause the fauna impact statement to be legally
to seek the further information assumes an adequate fauna inadequate or otherwise fatally flaw the decision-making
impact statement. The provision (in a 92B(6) is merely process.
an enabling one to allow the Director to seek additional
information which may not necessarily be included in a Mr. Dodd further submits that the fauna impact statement
fauna impact statement but which would assist him in is inadequate in failing to address sufficient species and
making a decision on the application. in sufficient detail. He maintains that the fauna surveys
were inadequate and there has been a failure to provide a
I reject the submission. The provision allowing the full description of the affected fauna and their habitat.
Director-General to seek further information from an Moreover, he contends that there is an inadequate
applicant is clearly designed to assist the decision-maker description of the actions involved in the proposal. He
and supplement the fauna impact statement in any area draws attention to the fauna impact statement not
specified by the Director in his request. Like an including the development consent conditions, taking
environmental impact statement, a fauna impact account of their import and including an examination of
statement is not the decision, rather it is a tool to aid the the proposed Illaroo Road deviation. In my opinion the
decision-maker in his/her task. The Schedule of criticisms catalogued by Mr. Dood are insufficient to lead
endangered species is not static; see s 92A(3) and s 94. the Court to conclude that the fauna impact statement is
Indeed, changes to the listed endangered fauna may be legally inadequate. It may not be perfect, but it does not
illustrated by this case. When the fauna impact statement need to be. The fauna impact statement includes a
was compiled and submitted, the Diamond Python was reasonably thorough discussion of the significant issues
listed and thus was included in the statement. The Giant and likely faunal consequences. It appears to me that
Burrowing Frog, however, was not listed and not the fauna impact statement, read with the further
discussed in the statement. In December 1992, after the information, satisfies the tests: collected in Schaffer
fauna impact statement was completed, but before the Corporation v Hawkesbury City Council Ltd (at 30-32).
further information was requested by the Director- In my opinion the fauna impact statement is legally
General, the Diamond Python was removed from the list adequate and not in breach of s 92D(1) or s 92D(2) of
and the Giant Burrowing Frog added. The additional the Act. Accordingly, the Court may proceed to the merit
information forwarded by the Council sought to describe review of the application.
and assess that creature.
In a dynamic situation, such as this, it cannot realistically THE MERITS
be suggested that when a new species is added to the
list, a new fauna impact statement is required. Such a Since as far as I am aware, this is the first appeal under s
requirement would make a nonsense of the system, render 92C of the National Parks and Wildlife Act, it may be
it almost unworkable, overly expensive and subject to useful to examine the Court’s role in such proceedings.
unreasonable delays. In my opinion a fauna impact In determining an appeal s 92C(2) directs the Court to s
statement can be supplemented by further information 92B(6). It is mandatory for the Court to take these matters
required by the Director-General and that information into account. They comprise:
can be taken into account by the Court in assessing the
question of the legal adequacy of the process. One aspect, • The fauna impact statement.
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
• Any public submissions received by the National precautionary principle in the following terms:
Parks and Wildlife Service.
“... where there is a threat of significant reduction or
• The factors set out in s 92A(5) and s 92A(6). These loss of biological diversity, lack of full scientific cer-
differ between threatened and vulnerable and rare tainty should not be used as a reason for postponing
species but in both cases include (e) “any other measures to avoid or minimise such a threat.”
matter which the Committee [I interpolate the Di- Within Australia the Commonwealth has enacted the
rector-General under s 92B(6) and the Court under Endangered Species Protection Act 1992 which makes
s 92C(2)] considers relevant”. provision under s 175 to give effect to international
agreements specified in Schedule 4 of the Act. At this
• Any reasons of the scientific committee under s point in time, Schedule 4 does not include the 1992
92A(3)(d). Convention on Biological Diversity. However, the
precautionary principle has been incorporated in the
• Any further information provided under s 92B(6). Commonwealth strategies on Endangered Species and
Biological Diversity and, more generally, in the 1992
In addition, s 92C(2) makes it clear that the factors set Intergovernmental Agreement on the Environment, as
forth in s 92B(6) do not limit s 39 of the Land and well as state legislation such as the Protection of the
Environment Court Act. As quoted earlier s 39(2) states Environment Administration Act 1991 (NSW). In this
that in addition to any other functions and discretions statute the statement of the principle has taken the
that the Court has, it shall have all the functions and following form:
discretions of the person whose decision is the subject
of the appeal, in this case the Director-General of the “... if there are threats of serious or irreversible envi-
National Parks and Wildlife Service. Subsection (3) ronmental damage, lack of full scientific certainty
requires an appeal to be by way of re-hearing and fresh should not be used as a reason for postponing meas-
evidence, in addition to or in substitution for the evidence ures to prevent environmental degradation” (s
6(2)(a)).
given on the making of the decision, may be given. Of
importance to this application is subs (4). It provides The 1992 Intergovernmental Agreement on Environment
that in making its decision on appeal the Court shall have has also utilised this formulation, but expanded it by
regard to the Land and Environment Court Act and any adding:
other relevant Act or instrument, “the circumstances of
the case and the public interest”. “In the application of the precautionary principle public
and private decisions should be guided by:
As previously mentioned, at least two submissions raised
the question of the application of the “precautionary (i) careful evaluation to avoid, wherever practicable,
principle”. The question arises whether, if the principle serious or irreversible damage to the environment;
is relevant, it may be raised in the appeal. Mr. Dood and
asks that it be taken into account, particularly in relation
to the Giant Burrowing Frog. On behalf of the Director- (ii) an assessment of the risk weighed consequences of
General, Mr. Preston submits that the principle could be various options.”
applicable. For example, he says that the Court would
not issue a licence to take or kill a particular endangered On behalf of the Director-General, Mr. Preston made
species if it was uncertain where that species would be submissions on the incorporation of international law into
present or there was scientific uncertainty as to the effect domestic law. It seems to me unnecessary to enter into
of the development on the species. this debate. In my opinion the precautionary principle is
a statement of commonsense and has already been
While there has been express references to what is called applied by decision-makers in appropriate circumstances
the “precautionary principle” since the 1970’s, prior to the principle being spelt out. It is directed towards
international endorsement has occurred only in recent the prevention of serious or irreversible harm to the
years. Indeed, the principle has been referred to in almost environment in situations of scientific uncertainty. Its
every recent international environmental agreement, premise is that where uncertainty or ignorance exists
including the 1992 Rio Declaration on Environment and concerning the nature or scope of environmental harm
Development [Principle 15], the 1992 UN Framework (whether this follows from policies, decisions or
Convention on Climate Change [art 3(3)], the June 1990 activities), decision-makers should be cautious.
London Amendments to the Montreal Protocol on
Substances that Deplete the Ozone Layer [preamble, par I have earlier referred to the factors the Court must take
6] and the 1992 Convention on Biological Diversity. This into account on an appeal under s 92C of the Act. These
latter convention, which Australia has ratified, is of include the submissions made (s 92B)(6)(b)), some of
relevance to the present case. It formulates the which argued that the precautionary principle was
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LEATCH V NATIONAL PARKS & W ILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL
appropriate to the case; any other matter which the Court knowledge. We know with reasonable certainty that the
considers relevant (s 92A(6)(e)) and the circumstances call of a male frog was heard by Dr. York and Mr. Daly
of the case and the public interest (s 39(4) of the Land in 1992. We know that it is likely that there is a population
and Environment Court Act). The issue then is whether of the frogs in the area. Webb, an expert on the frog,
it is relevant to have regard to the precautionary principle says that the amphibian is known to move great distances
or what I refer to as consideration of whether a cautious from breeding areas when foraging for food at night.
approach should be adopted in the face of scientific While its prime habitat appears to be a gorge or creek
uncertainty and the potential for serious or irreversible environment, the Giant Burrowing Frog may forage wider
harm to the environment. afield into drier areas. It is not surprising therefore that
its call was heard in an area some distance from the gorge.
To test the relevance of these considerations, or the Dr. York’s statement that the degradation of the gorge
precautionary principle, to the endangered fauna habitat leads to the conclusion that it is not prime habitat
provisions of the National Parks and Wildlife Act, one for the species is open to question and is not self-evident
needs to examine the subject matter, scope and purpose to me. Dr. York does, however, make the point in his
of the enactment. A consideration will be irrelevant if report (exhibit M1) that the nature and extent of the
one is bound by the enactment to ignore it. However, population of the Giant Burrowing Frog in the study area
where a matter is not expressly referred to, consideration are unknown. Notwithstanding, he says that it is possible
of it may be relevant if an examination of the subject to make a reasonable assessment of the possible impacts
matter, scope and purpose shows it not to be an extraneous of the road because of the known habitat requirements.
matter: Minister for Aboriginal Affairs v Peko-Wallsend Dr. York sees a very small loss of foraging habitat and
Ltd (1986) 162 CLR 24. no loss or interference with access to food or breeding
patterns.
Under Pt 7 of the Act, the Director-General is appointed
the authority for “the protection and care of fauna” (s Garry Webb disagrees with a number of conclusions of
92). The remainder of Pt 7 establishes a regime requiring Dr. York. He accepts that the species is notoriously
consideration and identification of endangered fauna difficult to find but is critical of the limited reptile and
(threatened or vulnerable and rare) (s 92A), licensing amphibian survey, which is certainly inadequate to
where endangered fauna may be taken or killed and the determine the regional significance of its presence at
creation of offences involving stringent penalties Bomaderry Creek. Since it is listed as a rare and
(including imprisonment) for the taking or killing of vulnerable species, Mr. Webb says that its conservation
protected and endangered fauna in contravention of the should be given a high priority. I accept his opinion.
Act (as 98, 99, 103). It is clear that the purpose of these The frog is known in only a small number of locations in
provisions is the protection and care of endangered fauna. the Shoalhaven region. Apart from the present case, only
To this end the scientific committee (in placing fauna on two sightings have been made - at Jervis Bay and 15
the endangered list), the Director-General (in kilometres south-east of Bowral in 1963. Its distribution
determination of a licence) and the Court (on appeal) is obviously patchy and its recent listing by the scientific
are to have regard, inter alia, to the population, committee understandable.
distribution, habitat destruction and ultimate security of
a species; see s 92A(5) and s (2A(6). Similar data or In the opinion of Mr. Webb the road would present an
details are to be assessed under the fauna impact insurmountable barrier to the dispersion of frogs at
statement: see in particular s 92D(c)(ii) and s 92D(c)(iii). favourable times and divide suitable habitat into small
isolates. He doubts the relevance of any of the proposed
When Pt 7 of the Act is examined it is readily apparent mitigating factors to frogs and knows of no study which
that the precautionary principle, or what I have stated supports the efficacy of underpasses for frogs. (In this
this may entail, cannot be said to be an extraneous matter. regard Mr. Webster handed up a beautifully presented
While there is no express provision requiring booklet entitled Amphibienschutz from Baden-
consideration of the “precautionary principle”, Wurttemberg. Its photographs include frogs and highway
consideration of the state of knowledge or uncertainty underpasses. Unfortunately the text is in German, and
regarding a species, the potential for serious or notwithstanding my ancestry, I am unable to comprehend
irreversible harm to an endangered fauna and the adoption its import.)
of a cautious approach in protection of endangered fauna
is clearly consistent with the subject matter, scope and Mr. Webb also opines other potential impacts on the Giant
purpose of the Act. Burrowing Frog. However, he concludes his report by
emphasising the inadequacy of the date to quantify the
Upon an examination of the available material relevant extent and size of the population in the area “nor to assess
to the Giant Burrowing Frog (Heleioporus australiacus) the potential impact of the proposed road”. In his view
and the knowledge of the frog in this particular habitat, there has been an inadequate survey, an inadequate
one is driven to the conclusion that there is a dearth of assessment of potential habitat and an inadequate
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
assessment of the impact of the development on the construction of the Nowra by-pass in fifteen to twenty
survival of the population of the giant Burrowing Frog. years time. These prognostications are difficult for the
Again, I accept and prefer his opinion. Court to place great store in because they seem to be
assuming that the endangered fauna may die out anyway
Given that the Giant Burrowing Frog has only recently at some future point in time, so why worry about
been added to the schedule of endangered species by the conserving them now.
scientific committee as vulnerable and rare, and noting
the factors set forth in s 92A(6) to guide the committee’s In the final addresses made to the Court all parties - the
deliberations, caution should be the keystone to the applicant, the Director and the Council - appeared to
Court’s approach. Application of the precautionary accept that the Yellow-bellied Glider was likely to be
principle appears to me to be most apt in a situation of a adversely affected by the proposed road, that is, within
scarcity of scientific knowledge of species population, the definition of “take” in s 5. This is no doubt why the
habitat and impacts. Indeed, one permissible approach Council applied for and the Director granted a licence
is to conclude that the state of knowledge is such that under s 120 of the Act to take or kill the species. I agree
one should not grant a licence to “take or kill” the species that the evidence leads to the inevitable conclusion that
until much more is known. It should be kept steadily in the construction of the road and its development is likely
mind that the definition of “take” in s 5 of the Act includes to involve the taking or killing of the Yellow-bellied
disturb, injure and a significant modification of habitat Glider.
which is likely to adversely affect the essential
behavioural patterns of a species. In this situation I am The question for the Court is therefore, should the licence
left in doubt as to the population, habitat and behavioural be granted, and if so upon what conditions? In this regard
patterns of the Giant Burrowing Frog and am unable to I would suggest that a licence should not in most
conclude with any degree of certainty that a licence to circumstances be “general” in its coverage of endangered
“take or kill” the species should be granted. Accordingly, species but should specify the species which it permits
the licence under s 120, in so far as it seeks a permit to to be taken. I think this view is shared by the National
take or kill the Giant Burrowing Frog in the course of Parks and Wildlife Service, according to the submission
carrying out the development, is refused. of Mr. Preston. It makes good sense not to grant a licence
in relation to all endangered fauna when some species
The other principal species involved in the licence may be later located which were not the subject of a fauna
application is the Yellow-bellied Glider (Petaurus impact statement or added to the schedule by the scientific
australis). There is no doubt about its presence, although committee at a date after the issue of a general licence.
the Council’s consultants believe that only two small Further, I note that the licence in question was issued for
groups inhabit the area. While the gliders are expected a period of ten years. The development consent in this
to use all the eucalypti species present, the woodland, case does not lapse if it is physically commenced within
are another food resource. Mitchell McCotter accept that five years of its grant. Accordingly, a period of five years
the road may be a barrier to movement of gliders or thereabouts would probably be an appropriate period
attempting to utilise food resources. A proposal for the for a licence. The length of a licence should be confined,
erection of gliding poles to help facilitate movement of so far as reasonable, because of possible changes in the
the gliders has been made. This is accepted to be a physical environment and state of scientific knowledge.
somewhat novel ameliorative strategy which is yet to be
the subject of any published research. The efficacy of The decision-making process involved in the issue of a
such a measure is therefore unknown. licence under s 120 obviously involves a balancing of
considerations. This appears to be accepted by all parties
The Yellow-bellied Glider has been listed as a fauna of and was applied by the National Parks and Wildlife
special concern since the National Parks and Wildlife Service in its assessment of the application. Such a
Act was passed in 1974. In 1991 it was placed on Pt 2 of balancing of considerations is also part of the Council’s
Schedule 12 as vulnerable and rare. This status was case. Can the benefits of the proposed road be balanced
confirmed by the scientific committee in 1992. There is against the likely loss of endangered species? The
little doubt that the Grey Gum forested areas of the gorge Council says that it can, pointing to the need for the link
are likely to represent core areas of favoured habitat for road because of the growth of North Nowra, the
the gliders. It is also likely that the population of Yellow- advantages to the public as well as economic arguments.
bellied Gliders has been isolated in the study area and Not surprisingly the applicant takes a different view of
cut off from other populations of the species for some the balance. The Director-General, although having
years. On the one hand the road will likely split and determined to grant a licence, remains neutral, drawing
accordingly further reduce their habitat. On the other attention to his role in the protection and care of fauna.
hand the Council’s case suggests that their long-term
survival is threatened in any event by increasing As I have already stated, I am satisfied that there is a
residential development and the possibility of the need for a link road between North Nowra and the Princes
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LEATCH V NATIONAL PARKS & W ILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL
Highway to reduce the pressure on the Illaroo Road/ I find the latter comment hard to accept. There are a
Highway intersection. I accept Mr. Webster’s point that number of environmental economic models which factor
the public interest includes having the new link as well environmental values into cost/benefit analysis. Surely
as the preservation of endangered fauna. Having an approach which attempts to integrate economic and
concluded that the proposal is likely to take or kill environmental factors is preferable. In my opinion the
endangered fauna, the Court needs to weigh all competing purely economic analysis of the respective alternatives
factors in order to determine whether a licence should neglected to include natural values the balance. As a
be granted or refused. In this case one of the critical result the northern route via West Cambewarra Road was
factors to be balanced is the alternatives, especially where screened out too early in the process to be properly
one may involve environmental harm but not another. It considered as a real alternative to the preferred route.
is in this is area where, to my thinking, the Council’s
case is deficient. This is made more apparent from Mr. Nairn’s evidence
in reply, which includes the option of a Pitt Street
It seems apparent from the evidence that the northern extension north-east through Crown land to connect with
route via West Cambewarra Road is shorter and cheaper West Cambewarra Road. This proposed extension of Pitt
than the preferred route. This was confirmed by the cross- Street is unlikely to pass through any environmentally
examination of Mr. Nairn. This alternative is unarguably sensitive land and is well clear of the Bomaderry gorge.
better for the environment, for endangered fauna, rare If constructed, it will take people from the Pitt Street
plants and the recreational values of the Bomaderry Creek precinct and beyond well onto the northern option for
gorge. This is because the northern route is situated on the link road and, for large numbers of residents, would
the extremity of the area. But, in traditional cost/benefit provide a real alternative to Illaroo Road. It seems to me
terms, utilised by the Council, the option is said not to that insufficient attention has been given to the northern
be economically feasible. I have a certain difficulty in route, especially coupled with the Pitt Street extension
accepting this proposition at face value. Quite apart form canvassed by Mr. Nairn in his report in reply (exhibit K2
the narrow purely economic balancing, what appears to - figure 4 alternative 1)). The route also needs to be
be involved in the reasoning is a conclusion that considered in the context of the proposed sports complex
predictable human behaviour will lead to not enough in West Cambewarra Road near the intersection with
people in North Nowra using the northern route. It is Illaroo Road. In addition, the northern option leaves the
claimed that they will prefer to remain on Illaroo Road Bomaderry Creek gorge area intact rather than split into
which is shorter in distance, notwithstanding that they segments.
may experience delays at the intersection with the
highway.
CONCLUSION
It should not necessarily be assumed that the travel time
will be more for users of the northern route. Indeed, for It is the context of a thorough examination of alternatives,
the expanding residential areas to the north-west the route especially ones which have minimal environmental
would be more convenient. Mr. Nairn is concerned that impact, that one must balance the issue of a licence to
residents in the Pitt Street precinct and beyond will not take or kill endangered fauna. The need for a link road
be prepared to travel north-east (away form Nowra) is accepted but I question, when all pertinent factors are
before turning south and will therefore prefer to stay on weighed in the balance, whether the need is for this
Illaroo Road. One may ask whether people are so particular road. The issue of the best route, taking account
committed to the motor vehicle that they are not prepared of all relevant circumstances, including environmental
to spend what might be an extra minute or two (at the factors, needs to be carefully assessed. It appears to me
most) to preserve an area of natural values and fauna that alternatives need to be further explored. I am not
habitat, a resource used by the very same community? satisfied that a licence to take or kill the Yellow-bellied
A public education campaign by the Council (and the Glider, or any of the other species discussed in the fauna
National Parks and Wildlife Service) with appropriate impact statement, is justified. The applicant for such a
signage, could well help explain a new link route to the licence needs to satisfy the Court, on the civil standard
north-east in preference to one traversing the Bomaderry on the balance of probabilities, that it is appropriate in
Creek gorge. all the relevant circumstances to grant the licence. I am
not convinced of the strength and validity of the economic
With respect to the northern route two comments are arguments presented to the Court by the Council, nor do
worth making on Mr. Nairn’s reports. First, he states that I take such a predictable view of human behaviour as
environmental factors were not included in the cost/ Mr. Nairn.
benefit analysis. In this circumstance, the value to the
Court of his cost/benefit analysis is limited. Mr. Nairn Following an examination of the evidence, I am not
says that the inclusion of environmental values is not satisfied that a licence under s 120 of the National Parks
required by the State Treasury and not usual in Australia. and Wildlife Act to take or kill endangered fauna should
383
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
be granted to the Council. However, it should be Appeal allowed and
emphasised that refusal of this licence application should
not necessarily be assumed to be an end of the proposal. licence refused
Further information on endangered fauna and advances
in scientific knowledge may mean that a licence could Solicitors for the applicant: Bartier Perry & Purcell.
be granted in the future. Also, changes in the proposal
and ameliorative measures may lead to a different Solicitors for the respondent: J A Gibbins (National Parks
assessment. This case has been determined, as it must, and Wildlife Service).
on the evidence produced to the Court at the hearing and
the Court cannot speculate as to the future. Solicitors for the second respondent (the Council):
Morton & Harris (Nowra).
Accordingly, the appeal is upheld and the licence refused.
The exhibits may be returned. Costs are reserved. TFMN
384
SECTION 6
Polluter-Pays Principle/
Liability for Environ-
mental Damage
385
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
386
NATAL FRESH PRODUCE GROWERS’ ASSOCIATION AND OTHERS
v.
AGROSERVE (PTY), LTD AND OTHERS
NATAL PROVINCIAL DIVISION
Howard J.P.
1989 December 13 1990 January 19
Negligence — Liability for — Wrongful conduct — objects — At best indirect interest not sufficient to con-
Exception to particulars of claim as lacking averments fer locus standi to join proceedings.
to sustain action for interdict on basis of Lex Aquilia —
Failure to allege facts from which inference or conclu- In an action base don the Lex Aquilia, a plaintiff must
sion to be drawn that defendant’s activities in manufac- allege and prove facts to show that the defendant’s con-
turing and distributing hormonal herbicides wrongful — duct is wrongful. To determine whether it is wrongful
Manufacture and distribution throughout South Africa the conduct is measured against a criterion of reasona-
of hormonal herbicides registered for sale in terms of bleness representing the legal convictions of the com-
Fertilisers, Farm Feeds, Agricultural Remedies and Stock munity. The decision as to whether the conduct is wrong-
Remedies Act 36 of 1947 for use as agricultural rem- ful involves policy considerations and entails evaluating
edies prima facie lawful activities — Not rendered un- and balancing the conflicting interests involved with due
lawful by use to detriment of some by third parties for regard to the social consequences of categorising con-
whose conduct manufacturers and distributors not respon- duct as wrongful. In line with the Court’s conservative
sible — Manufacture and distribution of herbicides not approach to the extension of the actio legis Aquilia, it
amounting to procuring, instigating or encouraging such will be extended only if positive policy considerations
use so as to make manufacturers legally responsible for favouring such extension are shown to exist.
products’ users’ actions — Manufacture and distribution
constituting causa sine qua non of such use but not suf- Defendants, in an action for an interdict restraining cer-
ficient to saddle manufacturers with legal responsibility tain of their conduct, excepted to plaintiffs’ particulars
— Failure to allege facts to support extension of concept of claim. They alleged that plaintiffs had failed to allege
of wrongfulness to cover novel situation — Grossly un- sufficient facts to justify the conclusion that defendant’s
reasonable to brand manufacturer’s actions unlawful in conduct was wrongful. Ex facie the particulars of claim,
absence of allegations giving rise to policy considera- the defendants did no more than manufacture and dis-
tions militating in favour of such extension. tribute hormonal herbicides duly registered for sale in
terms of the Fertilisers, Farm Feeds, Agricultural Rem-
Practice — Pleadings — Exception — Rule that Court edies and Stock Remedies Act 36 of 1947, activities
obliged to take pleadings as they stood for purpose of which were prima facie lawful. Defendants alleged that
deciding exception — Operation of rule limited to alle- such activities were not rendered unlawful by the fact
gations of fact and cannot be extended to inferences and that the herbicides were used to the detriment of some
conclusions not warranted by allegations of fact — Prin- by third parties for whose conduct the defendants were
ciple also not obliging Court to stultify itself by accept- not legally responsible. To hold otherwise, they alleged,
ing facts which are manifestly false and so divorced form would involve an extension of the concept of wrongful-
reality that they could not possibly be proved. ness in Aquilian liability to a new situation, an extension
not warranted by the general criterion of reasonableness
Practice — Parties —Locus standi — Growers’ associa- and inimical to public policy amounting to an unjusti-
tion — Objects of promoting and protecting interests of fied interference with defendant’s freedom of trade. Plain-
growers of all kinds of fresh produce — No direct and tiffs pointed to the particulars of claim which contained
substantial interest in action to interdict manufacture and allegations of fact to the effect that (a) any use of hormo-
distribution of hormonal herbicides — No legal interest nal herbicides anywhere in South Africa resulted in dam-
prejudicially affected by judgment — Damage to fresh age to fresh produce in the Tala Valley, (b) such damage
produce of some members not hindering association in could not be prevented except by eliminating the use of
387
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
herbicides throughout South Africa, (c) the use of herbi- and distribution of such herbicides facilitating such use
cides was caused, accommodated and encouraged by caused the damage, that, the logic of such reasoning aside,
their manufacture and distribution, and (d) therefore the the argument had to be rejected because it was based on
damage was caused by the manufacture and distribution the false premise that the facts alleged, namely any use
of such herbicides. They contended further that such of the herbicides anywhere in South Africa resulted in
particulars set out a cause of action established by au- damage to the fresh produce in the Tala Valley, could be
thority and involving no extension of the Aquilian ac- proved.
tion. Plaintiffs also contended that for the purpose of
deciding the exception the Court was obliged to take the Held, furthermore, bearing in mind that the scope of the
pleadings as they stood, assuming the truth of the alle- Aquilian action would not be extended to new situations
gations contained therein. unless there were positive policy considerations favour-
ing such an extension, that the onus was on the plaintiffs
Held, that the principle that a Court was obliged to take to make such allegations regarding such policy consid-
the pleadings as they stood for the purpose of determin- erations and they had vouchsafed no particulars of the
ing whether an exception to them should be upheld, was extent of the use of the herbicides or the effect such an
limited in operation to allegations of fact and could not interdict as was sought would have on users of herbi-
be extended to inferences and conclusions not warranted cides, the agricultural sector and the economy as a whole.
by the allegations of fact.
Held, accordingly, that it would be grossly unreasonable
Held, further, that such principle did not oblige a Court to brand the defendants’ activities as wrongful merely
to stultify itself by accepting facts which were manifestly because such herbicides had been used to the detriment
false and so divorced from reality that they could not of growers of fresh produce in the Tala Valley by one or
possibly be proved and the Court could not accept as more unidentifiable persons over whom the defendants
fact the allegation that any use of herbicides anywhere had no control and for whose conduct they were not le-
in South Africa resulted in damage to fresh produce grow- gally responsible.
ing in the Tala Valley.
Held, therefore, that the plaintiffs’ allegations of fact
Held, further, that the allegation that the use of hormo- contained in their particulars of claim did not give rise
nal herbicides was caused, accommodated and encour- to policy considerations favouring the extension of the
aged by their manufacture and distribution was not an concept of wrongfulness in Aquilian liability to cover
allegation of fact but an inference or conclusion not en- defendants’ conduct and the exception had to be upheld.
tirely warranted by the facts.
Held, further, with regard to the argument that first plain-
Held, further, that there was no allegation that the de- tiff lacked locus standi to sue for the relief claimed, that
fendants used, procured or instigated the use of herbi- the legitimate interest alleged by plaintiff which it
cides by others and, while the manufacture and distribu- claimed it was entitled to protect, namely promoting and
tion of the products undoubtedly facilitated their use, that protecting the interests of growers of all kinds of pro-
did not amount to procuring, instigating or encouraging duce, did not amount to a direct and substantial interest
such use so as to make defendants legally responsible in the subject-matter of the action which could be preju-
for the actions of the products’ users. dicially affected by the judgment.
Held, further, that the only connection between the ac- Held, further, in this regard, that it had not been alleged
tivities of defendants and the damage-producing use of that the wrongdoing of the defendants was directed to-
the herbicides by others was that the manufacture and wards the Tala Valley growers because of their member-
distribution facilitated such use so that it could be re- ship of the first plaintiff nor that first plaintiff conducted,
garded as a causa sine qua non of the use, but that in organised or directed farming operations on behalf of its
itself was not sufficient to saddle the manufacturers with members.
legal responsibility for the conduct of the users nor was
it sufficient to place plaintiffs’ cause of action in the es- Held, further, that damage to the fresh produce of some
tablished or traditional category of damage to property of its members could not hinder the first plaintiff in car-
which was limited to damage to property caused by the rying out its objects of promoting and protecting the in-
defendant himself or by his agent or employee or some terests of growers so that at best it had an indirect inter-
other person for whose actions he was legally responsi- est in the proceedings, but this did not confer locus standi
ble. to join the action.
Held, further, with regard to the argument that if the use Exception to particulars of claim in an action for an in-
of the herbicides anywhere in South Africa inevitably terdict. The nature of the pleadings appears from the rea-
resulted in damage then it followed that the manufacture sons for judgment.
388
NATAL FRESH PRODUCE GROWERS ASSOCIATION V A GROSERVE (PTY) L TD
C.E. Puckrin SC (with him D.N. Beasley and P.Q.R. (c) have the property of being toxic to broad leafed
Boberg) for the excipients. plants.
D.J. Shaw QC (with him P.J. Olsen) for the respondents. 4. Each of the excepting defendants is the holder of a
certificate of registration (or a certificate of renewal of
Cur adv vult. registration) in respect of one or more hormonal herbi-
cides registered for sale in terms of Act 36 of 1947.
Postea (January 19).
5. Each of the excepting defendants manufactures and
Howard JP: The first, second, third, eighth, ninth, elev- or distributes registered hormonal herbicides for use
enth, thirteenth, fifteenth and seventeenth defendants (the within the Republic of South Africa.
excepting defendants) except to the plaintiffs’ particulars
of claim as lacking averments which are necessary to sus- 6. Hormonal herbicides used within the Republic of
tain an action. The exception is based on several grounds South Africa are transported through the medium of water
only two of which I find it necessary to consider. and air and are thus deposited on fresh produce growing
within the province of Natal, and especially within the
The Plaintiffs have instituted action for an order inter- Tala Valley area.
dicting each defendant except the eighteenth from ‘manu-
facturing and or distributing within the Republic of South 7. The deposit of hormonal herbicides upon fresh pro-
Africa’ products which are collectively referred to as duce within the province of Natal, and especially the Tala
‘hormonal herbicides’. The eighteenth defendant is the Valley, has damaged and will continue to damage plants
Registrar of Fertilisers, Farm Feeds, Agricultural Rem- grown and owned by members of the first plaintiff, and
edies and Stock Remedies duly designated by the Min- in particular by the second and third plaintiffs.
ister of Agriculture in terms of s 2 of the Fertilisers, Farm
Feeds, Agricultural Remedies and Stock Remedies Act 8. The said damage flows as a result of the distribu-
36 of 1947. He is cited by reason of his potential interest tion and consequent use of hormonal herbicides within
arising form his duty to register agricultural remedies the Republic of South Africa.
(including herbicides) under the Act. The particulars of
claim contain the following allegations: 9. The use of hormonal herbicides within the Repub-
lic of South Africa is caused, accommodated and encour-
1. The first plaintiff is the Natal Fresh Produce Grow- aged by the manufacture and distribution of hormonal
ers’ Association, a duly constituted association of per- herbicides for use within the Republic of South Africa.
sons not for gain which:
10. The said damage cannot be prevented except by the
(a) has as one of its objects the promotion and protec- elimination of the use of hormonal herbicides within the
tion of the interests of growers of all kinds of fresh Republic of South Africa.
produce;
11. The matters set forth in 6, 7 and 8 above have at all
(b) has as its members growers of fresh produce who material times been well known to the defendants.
farm within the province of Natal, including the
second and third plaintiffs. 12. The defendants have further at all material times
known, or ought reasonably to have known, of the risk
2. The second and third plaintiffs are farmers who grow of damage to farmers such as members of the first plain-
fresh produce in an area within and adjoining the place tiff, including the second and third plaintiffs.
generally known as the Tala Valley, Natal.
13. In the premises, the use, and the manufacture and
3. Either alone or in combination with other sub- distribution of hormonal herbicides for use within the
stances, the chemical compounds known as 2, 4-D, Republic of South Africa is wrongful.
dicamba, MCPA, MCPB, picloram and triclopyr are the
active ingredients of hormonal herbicides, which 14. In the premises, each defendant save the eighteenth
defendant has wrongfully caused, and continues to
(a) are registered by the eighteenth defendant for sale wrongfully cause, damage to fresh produce grown and
within the Republic of South Africa under certain owned by members of the first plaintiff, and especially
product names; by the second and third plaintiffs, and is liable to be in-
terdicted against its wrongful activity.
(b) are used within the Republic of South Africa as ag-
ricultural remedies for the control of weeds, and in It is common cause that the plaintiffs’ claim to an inter-
similar applications; dict is based on the delict, specifically on the actio legis
389
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Aquiliae as it has been extended and applied in our law, defendants have caused such damage. He refers to paras
and that to succeed in their claim the plaintiffs must al- 27-31 of the particulars of claim (reproduced as paras 6-
lege and prove facts to show that the conduct of the de- 10 above) and says that they contain allegations of fact
fendants which they seek to interdict is wrongful. To to the effect that: (a) any use of hormonal herbicides in
decide whether conduct is wrongful in the delictual sense South Africa results in damage to fresh produce grown
the Court applies the general criterion of reasonableness in the Tala Valley, particularly that grown by the second
(algemene redelikheidsmaatstaf) which is determined and third plaintiffs; (b) such damage cannot be prevented
according to the legal convictions of the community. The except by eliminating the use of hormonal herbicides
decision involves policy considerations, and the Court thorughout South Africa; and (d) the damage is there-
has to evaluate and balance the conflicting interests of fore caused by the manufacture and distribution of hor-
all concerned parties, with due regard inter alia to the monal herbicides and cannot be prevented without putting
social consequences of recognising or denying the exist- a stop to such manufacture and distribution.
ence of liability in a given case: see Minister van Polisie
v Ewels 1975 (3) SA 590(A) at 596f-597f; Administrateur, Mr. Shaw relies on the principle that in these proceed-
Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) ings the Court must take the pleading excepted to as it
at 832-4; Marais v Richard en’n Ander 1981 (1) SA 1157 stands, assuming the truth of the allegations it contains.
(A) at 1168C-E; Coronation Brick (Pty) Ltd v Strachan He submits that even though some of the allegations may
Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 380A- appear to be far-fetched there may well be evidence avail-
E, 384C-E; Lilklicrap, Wassenar and Partners v able to prove them, and that the question of causations is
Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) a factual issue which cannot be decided without evidence.
at 498C-499A, 503F-H. As stated by Grosskopf AJA in The principle referred to is limited in its operation to
the last-mentioned case (at 500D, 503I-504A, 504G our allegations of fact. It does not extend to inferences and
law adopts a conservative approach to the extension of conclusions not warranted by allegations of fact. And I
liability under the actio legis Aquiliae to circumstances do not think that it obliges the Court to stultify itself by
not covered by existing authority; it will not extend the accepting allegations of ‘fact’ which are manifestly false,
scope of the action to such new situations “unless there allegations which are so divorced from reality that they
are positive policy considerations which favour such an cannot possibly be proved.
extension”.
I do not accept as a fact that any use of hormonal herbi-
Counsel for the excepting defendants submit that the cides anywhere in South Africa results in damage to fresh
plaintiffs have failed to allege sufficient facts to justify produce growing in the Tala Valley. Granted that hormo-
the conclusion that their conduct is wrongful in the delict- nal herbicides sprayed on crops can be transported
ual sense. They point out that ex facie the particulars of through the medium of water and air, I cannot accept
claim the defendants do no more than manufacture and that any that are applied by watering can to crops or do-
distribute hormonal herbicides which are duly registered mestic lawns in the Cape Peninsula or the far Northern
for sale in terms of Act 36 of 1947 an used as agricul- Transvaal, for example, can possibly be deposited on
tural remedies for the control of weeds and in similar fresh produce growing in the Tala Valley,or anywhere in
applications. These activities are prima facie lawful and Natal for that matter. Miracles of that order do not hap-
the manufactured products are capable of perfectly law- pen. I am not concerned to determine what use or mis-
ful use. They submit that the lawful manufacture and use of hormonal herbicides on farms bordering on the
distribution of these products is not rendered wrongful Tala Valley or further afield may feasibly result in dam-
by the fact that they are used to the detriment of the sec- age to fresh produce growing in that area. All that I do
ond and third plaintiffs by third parties for whose con- say, without fear of contradiction by any truthful evi-
duct the defendants are not legally responsible. To hold dence that can possibly be adduced, is that the allegation
otherwise would involve an extension of the concept of in paras 27 and 31 of the particulars of claim (to the ef-
wrongfulness in Aquilian liability to a new situation, an fect that any use of hormonal herbicides anywhere in
extension which is not warranted by the general crite- South Africa results in damage to fresh produce grow-
rion of reasonableness, and which would be inimical to ing in the Tala Valley) is based on fantasy rather than
public policy as amounting to an unjustified interference fact.
with the defendants’ freedom of trade and the right of
legitimate users of the products to protect their crops. In my judgment the allegation in para 30 of the particu-
lars of claim (para 9 above) that the use of hormonal
Counsel for the plaintiffs, Mr. Shaw, contends that the herbicides is ‘caused, accommodated and encouraged’
particulars of claim set out a cause of action which is by their manufacture and distribution is not an allega-
established by authority and involves no extension of the tion of fact but an inference or conclusion which is not
scope of the Aquilian action; (a) the plaintiffs have a entirely warranted by the facts. The factual allegations
prima facie right not to be injured in their property; (b) are that the defendants manufacture and distribute hor-
their property has been damaged; and (c) the acts of the monal herbicides for use within the Republic of South
390
NATAL FRESH PRODUCE GROWERS ASSOCIATION V A GROSERVE (PTY) L TD
Africa. It is not alleged that they use hormonal herbi- the allegations of fact properly so called it is only the
cides or procure or instigate the use of hormonal herbi- use of hormonal herbicides which results in damage to
cides by others. It is not even alleged that they deal di- fresh produce growing in the Tala Valley, and that their
rectly with the suers of their products. There is presum- clients do no more than facilitate such use by manufac-
ably a vast network of merchants and other middlemen turing and distributing hormonal herbicides. That being
who sell and supply the products to consumers. By manu- so, the plaintiffs’ action for an interdict to prohibit the
facturing and distributing their products the defendants defendants from manufacturing and distributing their
undoubtedly facilitate or accommodate the use of hor- products does not arise from acts by the defendants which
monal herbicides by others but that does not amount to are prima facie clearly wrongful. It is not sanctioned by
procuring, instigating or encouraging such use so as to any authority to which I have been referred, and it clearly
make them legally responsible for the actions of the us- involves an extension of the concept of wrongfulness in
ers, on the basis that qui facit per alium facit per se. (Cf Aquilian liability to a novel situation. And that gives rise
Belegging en Exploitatioemaatschappij Lavender BV v to the question whether the plaintiffs have alleged suffi-
Witten Industrial Diamonds Ltd [1979] Fleet Street Rep cient facts to justify the legal conclusion that the con-
59 (CA) at 60, 65.) Nor do the alleged facts warrant the duct of the defendants is wrongful in the delictual sense,
conclusion that the manufacture and distribution of hor- bearing in mind that the scope of the Aquilian action
monal herbicides causes the use of such herbicides by may not be extended to new situations unless there are
others, in the sense that the manufacturers are legally positive policy considerations which favour the exten-
responsible for such use. On the facts pleaded the only sion. That it is incumbent upon the plaintiffs to allege
connection between the activities of the defendants and such facts is clear, I think, from the following passage in
the damage-producing use of hormonal herbicides by the judgment of Grosskopf AJA in Lillicrap, Wassenaar
others is that the manufacture and distribution of the and Partners v Pilkington Brothers (SA) (Pty) Ltd (su-
hormonal herbicides facilitates such use. It may be that pra at 4961-497B):
the use cannot take place without the manufacture and
distribution, so that the manufacture and distribution can The fundamental question for decision is accordingly
be regarded as a causa sine qua non of the use, but that whether the respondent has alleged sufficient facts to
is not sufficient to saddle the manufacturers with legal constitute a cause of action for damages in delict. In the
responsibility for the conduct of the users. Nor does it present case we are concerned with a delictual claim for
suffice to place the plaintiffs’ cause of action in the es- pecuniary loss, and, as mentioned above, it is common
tablished or traditional category of damage to property cause that the claim was founded on the principles of the
referred to in Cape Town Municipality v Paine 1923 AD extended Aquilian action. It is trite law that, to succeed
207 at 216-17 and Lillicrap, Wassenaar and Partners v. in such a claim, a plaintiff must allege and prove that the
Pilkington Brothers (SA) (Pty) Ltd (supra at 497B-C). defendant has been guilty of conduct which is both
That category is limited to damage to property caused wrongful and culpable; and which caused patrimonial
by the defendant himself or by an agent, employee or damage to the plaintiff (see e.g. Van de Walt (op cit para
other person for whose actions he is legally responsible. 2 at 2)). What has been placed in issue by the appellant
is whether, on the facts pleaded, the appellant’s conduct
Mr. Shaw contends that on the facts alleged in the par- was wrongful for purposes of delictual liability, and
ticulars of claim the manufacture and distribution of hor- whether the damages alleged to have been suffered, are
monal herbicides is not only a causa sine qua non of recoverable in a delictual action.
damage but the causa causans. He refers in this connec-
tion to the allegations in paras 27 and 31 that the damage That case came before the Court on exception, and the
is caused by any use of hormonal herbicides anywhere exception was allowed on appeal mainly on the ground
in South Africa, and he argues that if that is proved the that the plaintiff’s allegations (of fact) did not disclose
manufacture and distribution of the hormonal herbicides that the defendant’s conduct was wrongful for the pur-
cannot but be the causa causans of the damage. If I un- poses of Aquilian liability. It follows that if the plaintiffs
derstand it correctly the reasoning is that, if the mere use in this case have failed to allege sufficient facts to war-
of hormonal herbicides anywhere in South Africa inevi- rant the conclusion of wrongfulness the exception must
tably results in the alleged damage, it follows that, by be allowed.
manufacturing and distributing and thereby facilitating
the use of hormonal herbicides in South Africa, the de- In Coronation Brick (Pty) Ltd v Strachan Construction
fendants themselves cause the damage. I am not sure that Co (Pty) Ltd (supra) Booysen J adopted a different ap-
I follow the logic, but that does not matter. Whether logi- proach in deciding an exception that the plaintiff’s alle-
cally sound or not the argument must be rejected because gations did not disclose that the defendant’s conduct was
it is based on the false premise that the ‘facts’ alleged in wrongful in the delictual sense. His approach appears
paras 27 and 31 can be proved. from the following passages in the reported judgment
(at 379F-H);
I agree with counsel for the excepting defendants that on
391
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
‘This being the exception stage the excipient has to sat- The plaintiffs allege that hormonal herbicides are used
isfy the Court that the particulars of claim as amplified in South Africa as agricultural remedies for the control
do not contain sufficient averments to sustain the action. of weeds and in similar applications, but they vouchsafe
If there were no averment of an essential element of the no particulars of the extent of such use or the effect which
wrong complained of then the question would be whether the interdict would have on the users, the agricultural
it is a reasonable inference from the facts alleged that industry or the economy. For all we know hormonal her-
the element is alleged. In this case though, because of bicides may be used beneficially by countless thousands
the construction which I place upon the averment of neg- of persons throughout the country; they may be neces-
ligence, my view is that unlawfulness has been alleged, sary for the protection of various crops and their pre-
i.e. that it has by implication been alleged that defendant scription might cripple important sectors of the agricul-
breached a legal duty owed by it to the plaintiff. Defend- tural industry and seriously damage the national
ant has therefore to satisfy me that the other allegations economy. It is not alleged that the use of hormonal her-
are of such a nature that the only reasonable inference is bicides cause such widespread damage that fresh pro-
that defendant’s acts or omissions were lawful. duce can no longer be successfully grown in South Af-
rica. On the contrary, the particulars of claim create the
And at 384H-385A: impression that all hormonal herbicides used in South
Africa home in on the Tala Valley, leaving the rest of the
‘As is apparent from what I have said it is obviously of country unscathed.
great importance to know all the relevant circumstances
when deciding whether the conduct complained of was Why then should the manufacture and distribution of
unlawful. Because of this a defendant in a case in which hormonal herbicides for use in South Africa be banned
pure economic loss is claimed who wishes to except to merely because they are used to the detriment of grow-
particulars of claim in which unlawful conduct on his ers of fresh produce in the Tala Valley, by one or more
part has either expressly or by implication been alleged unidentified persons over whom the manufacturers have
should, in his request for particulars, ask plaintiff to state no control and for whose conduct they are not legally
all the circumstances which the plaintiff avers gave rise responsible? I consider that on the facts pleaded it would
to a legal duty to take care. It seems to me that in such be grossly unreasonable to brand the defendants’ activi-
circumstances it is not sufficient merely to request par- ties as wrongful, notwithstanding their alleged knowl-
ticulars of certain circumstances which have been alleged edge of the damage being caused to fresh produce grow-
and then complain that those circumstances are not suf- ing in the Tala Valley. The allegations of fact certainly
ficient to justify the allegation of unlawfulness. If this is do not give rise to policy considerations which favour
done the excipient runs the risk that the Court might have extending the concept of wrongfulness in Aquilian li-
to find that the general allegation of unlawfulness car- ability to cover the conduct of the defendants.
ries the day.’
In my judgement the exception to the particulars of claim
The reasoning in these passages has been criticised by of the first plaintiff also succeeds on the further ground
Prof Boberg in The Law of Delict at 145, and in my re- that it does not have locus standi to sue for the relief
spectful opinion the criticism is well founded. Wrong- claimed. Mr. Shaw submits that although the first plain-
fulness, unlike the other requirements of Aquilian liabil- tiff has not alleged and cannot allege that it has suffered
ity, is not a factual issue but a conclusion of law for the or will suffer any damage as a result of the conduct of
Court to draw from the facts. (See Mabaso v Felix 191 the defendants, it has a ‘legitimate’ interest which it is
(3) SA 865 (A) at 875.) An averment that the defend- entitled to protect by joining as a plaintiff in this action.
ant’s conduct is wrongful, whether express or implied, That interest is alleged in para 25 of the particulars of
cannot affect the incidence of the burden of proof or add claim (para 1 above) to be ‘the promotion and protection
anything to the facts alleged in support of that conclu- of the interests of growers of all kinds of fresh produce’.
sion. In the light of the Lillicrap decision supra it is for It is further alleged that members of the first plaintiff
the plaintiff to allege sufficient facts to justify the con- who are growers of fresh produce in the Tala Valley are
clusion of wrongfulness, failing which his particulars of suffering damage as a result of the defendants’ alleged
claim are open to exception as lacking averments neces- wrongdoing. The growers’ interests are being damaged
sary to sustain the action. It is inconsistent with that ap- and that, says Mr. Shaw gives the first plaintiff locus
proach, and in my respectful opinion clearly wrong, to standi to protect their interests by way of interdict pro-
require the defendant to attempt to complete the plain- ceedings.
tiff’s cause of action by way of further particulars before
excepting on the ground that it lacks necessary averments. A ‘legitimate’ interest does not entitle the first plaintiff
As already indicated, a ‘general allegation of unlawful- to sue unless it amounts to a direct and substantial inter-
ness’, being a conclusion of law, can never carry the day est, a legal interest in the subject-matter of the action
if the plaintiff has failed to furnish particulars of facts which could be prejudicially affected by the judgment.
and circumstances sufficient to justify the conclusion. (See United Watch & Diamond Co (Pty) Ltd and Others
392
NATAL FRESH PRODUCE GROWERS ASSOCIATION V A GROSERVE (PTY) L TD
v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at included organising, controlling and administering ca-
415; PE Bosman Transport Works Committee and Oth- noeing on the stretch of river in question. In this case the
ers v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801 fact that the fresh produce of some of its members is
(T) at 804A-E; Ahmadiyya Anjuman Ishaati-Islam La- damaged cannot hinder the first plaintiff in carrying out
hore (South Africa) and Another v Muslim Judicial Coun- its object of promoting and protecting the interests of
cil (Cape) and Others 1983 (4) SA 855 (C) at 863H- growers. At best it has an indirect interest which does
864F.) It is not alleged that the wrongdoing of the de- not give it locus standi to join in this action.
fendants is directed towards the Tala Valley growers be-
cause of their membership of the first plaintiff. Nor is it In the result the exception is allowed with costs, includ-
alleged that the first plaintiff conducts, organises or di- ing the costs of two counsel where applicable. The par-
rects farming operations in the Tala Valley or elsewhere ticulars of claim are set aside and second and third plain-
on behalf of its members or otherwise. Its position is tiffs are granted leave to deliver amended particulars of
therefore quite different to that of the first applicant in claim within 20 Court days.
Transvaal Canoe Union and Another v Butgereit 1986
(4) SA 207 (T). In that case the Canoe Union was held to Excipient’ (Defendants’) Attorneys: D M Kisch Inc, Jo-
have locus standi to sue for an interdict to restrain the hannesburg; Loots Steenkamp, Pietermaritzburg. Re-
respondent from interfering with the rights of its mem- spondents’ (Plaintiffs’) Attorneys; Brokensha, Meyer &
bers to canoe on the Crocodile River, on the basis that it Partners, Pietermaritzburg.
had an interest of its own to protect, in that its functions
393
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
SUPREME COURT CASES
1997 VOL. 1
FEBRUARY 1, 1997
PARTS 2 & 3
REPORT 321 - END
JOURNAL NIL
THIS PART CONTAINS
THE VOLUME \INDEX
FORTNIGHTLY REPORTING JUDGEMENTS,
REPORTABLE AND NON-REPORTABLE,
OF THE SUPREME COURT OF INDIA
(1996) 3 SUPREME COURT CASES 212
(BEFORE B.P. JEEVAN REDDY AND B.N. BIRPAL, JJ)
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION AND
OTHERS — PETITIONERS;
v.
UNION OF INDIA AND OTHERS — RESPONDENTS.
Writ Petitions (C) No.967 of 1989 with Nos. 94 of 1990, 824 of 1993 and
76 of 19941, decided on February 13, 1996
A. Constitution of India - Arts. 32, 21, 48-A and 51- statutory duties - Environment (Protection) Act, 1986,
A(g) - PIL - Petition alleging environmental pollution Ss.3, 4, 5 - Water Prevention and Control of Pollution)
caused by private industrial units - Maintainability - Writ Act, 1974, Ss. 24(1), 25(1) (as amended by Act 53 of
petition filed by an environmentalist organization, not 1988), 33, 33-A (as introduced by Act 53 of 1988) - Air
for issuance of writ, order or direction against such units (Prevention and Control of Pollution) Act, 1974, Ss.24(1),
but against Union of India, State Government and State 25(1) (as amended by Act 53 of 1988), 33, 33-A (as
Pollution Board concerned to compel them to perform introduced by Act 53 of 1988) - Air (Prevention and
their statutory duties on ground that their failure to carry Control of Pollution) Act, 1981 - Hazardous Wastes
on such duties violated rights guaranteed under Art.21 (Management and Handling) Rules, 1989.
of the residents of the affected area - Held, maintainable
- Court can, after ascertaining that the alleged industrial B. Constitution of India - Arts. 32, 21, 48-A, 51-A(g) -
units were responsible for causing ecological fragility in Environmental pollution - Compensation - Imposition
the area, direct the authorities concerned to perform their of cost of remedial measures - Principles of Strict
1
Under Article 32 of the Constitution of India
394
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
Liability and Polluter Pays - Applicability - Hazardous if not properly treated, pose grave threat to Mother Earth.
and inherently dangerous activity carried on by industrial It poisons the earth, the water and everything that comes
units - Principle laid down by Supreme Court in Oleum in contact with it. The chemicals produced by
Gas Leak case regarding strict and absolute liability of Respondents 5 and 8 gave birth to about 2400-2500 MT
such units to compensate to persons adversely affected of highly toxic sludge (iron-based sludge and gypsum-
thereby, held, not obiter but binding - Rule in Rylands v. based sludge) besides other pollutants. Since the toxic
Fletcher, which is subject to exceptions of ‘foreseeability’ untreated waste waters were allowed to flow out freely
and ‘non-natural user’, not suitable for Indian conditions and because the untreated toxic sludge was thrown in
and hence not applicable - Discharge of highly toxic the open in and around the complex, the toxic substances
effluents viz. waste water and sludge, both iron-based percolated deep into the bowels of the earth polluting
and gypsum-based, from respondents’ chemical factories the aquifers and the subterranean supply of water. The
manufacturing ‘H’ Acid, poisoning earth, underground water in the wells and the streams turned dark and dirty
water, wells, agriculture and other vegetation and rendering it unfit for human consumption, unfit for cattle
rendering the village, where the factories located, to drink and for irrigating the land. The soil became
ecologically fragile - Respondents operating contrary to polluted rendering it unfit for cultivation, the mainstay
law without obtaining clearances from authorities of the villagers. It spread diseases, death and disaster in
concerned and also disobeying orders of authorities as the village and the surrounding areas. The villagers then
well as of Supreme Court - Respondents alone found to rose in virtual revolt leading to the imposition of Section
be responsible for such extensive damages - Held on facts, 144 CrPC by the District Magistrate in the area. It was
principles of Strict Liability and Polluter Pays applicable averred by the respondents that both the units, Silver
- Power of Central Government to direct such industries Chemicals and Jyoti Chemicals had stopped
to defray costs for undertaking remedial measures manufacturing ‘H’ acid since January 1989 were closed.
implicit under Ss. 3 and 4 of Environment (Protection) Yet the consequences of their action remained - the
Act - Determination of the amount required for carrying sludge, the long-lasting damage to earth, to underground
out the remedial measures, recovery/realization thereof water, to human beings, to cattle and the village economy.
and undertaking such measures are functions of Central An environmentalist organization filed the present writ
Government - Court can therefore issue appropriate petition before the Supreme Court by way of social action
directions to the Central Government to invoke and litigation, complaining precisely of the above situation
exercise the powers under Ss. 3 and 4 of the said Act - and requesting for appropriate remedial action. Pursuant
Environment (Protection) Act, 1986, Ss. 3 to 5 - Water to notice issued by the Supreme Court, the Government
(Prevention and Control of Pollution) Act, 1974, Ss. 24(I), of India, Government of Rajasthan, Rajasthan Pollution
25(I) (as amended by Act 53 of 1988), 33, 33-A (as Control Board (RPCB) and Respondents 4 to 8 filed
introduced by Act 53 of 1988) - Air (Prevention and counter-affidavits. The Court by its order dated 11-12-
Control of Pollution) Act, 1981 - Hazardous Wastes 1989 requested the National Environmental Engineering
(Management and Handling) Rules, 1989 - Tort. Research Institute (NEERI) to study the situation in and
around Bichhri village and submit their report “as to the
C. Constitution of India - Art. 32 - PIL - Reports choice and scale of the available remedial alternatives”.
submitted by experts pursuant to court’s orders - Absence From the affidavits of the parties, various orders of the
of opportunity to respondents to cross-examine the Court, technical reports and other data, it was found that
experts - Plea regarding raised at very late stage, out of 2440 tonnes of sludge, about 720 tonnes had been
unacceptable. stored in the pits provided by the respondents. The
remaining sludge was still there either within the area of
The units/factories of Respondents 4 to 8, located in an the complex of the respondents or outside their complex.
industrial complex in village Bichhri in Udaipur With a view to conceal it from the eyes of the inspection
(Rajasthan), were all chemical industries and were teams and other authorities, the respondents dispersed it
controlled by the same group of individuals. Respondent all over the area and covered it with earth. In some places,
4 started producing in 1987 certain chemicals like Oleum the sludge was lying in mounds. The units continued to
(concentrated form of sulfuric acid) and Single Super function even after and in spite of the closure orders of
Phosphate. Respondent 5 (Silver Chemicals) and the RPCB. They never did carry out the orders of the
Respondent 8 (Jyoti Chemicals) commenced production Supreme Court fully (e.g., entombing the sludge), nor
of ‘H’ acid. Respondents 6 and 7 were producing did they fulfil the undertaking given by them to the court
fertilizers and a few other products. The respondents (in the matter of removal of sludge and de-watering of
had not obtained the requisite clearances/consents/ the wells). In spite of repeated reports of officials and
licences; nor did they install any equipment for treatment expert bodies, they persisted in their illegal course of
of highly toxic effluents discharged by them. ‘H’ acid action in a brazen manner exhibiting their contempt for
was meant for export exclusively. Its manufacture gives law, for the lawful authorities and the courts. Allowing
rise to enormous quantities of highly toxic effluents - in the writ petition with costs.
particular, iron-based and gypsum-based sludge - which
395
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Held: The question is whether and to what extent can the
respondents be made responsible for defraying the cost
The contention that the respondents being private of remedial measures in these proceedings under Article
corporate bodies and not ‘State’ within the meaning of 32. (Para. 54 and 57).
Article 12, a writ petition under Article 32 would not lie
against them, cannot be accepted. If the Supreme Court Any principle evolved in this behalf should be simple,
finds that the Government/authorities concerned have not practical and suited to the conditions obtaining in this
taken the action required of them by law and that their country. According to the rule laid down by the
inaction is jeopardizing the right to life of the citizens of Constitution Bench of the Supreme Court in Oleum Gas
this country or of any section thereof, it is the duty of the Leak case, once the activity carried on is hazardous or
Supreme Court to intervene. It is found that the inherently dangerous, the person carrying on such activity
respondents are flouting the provisions of law and the is liable to make good the loss caused to any other person
directions and orders issued by the lawful authorities, by his activity irrespective of the fact whether he took
the Court can certainly make appropriate directions to reasonable care while carrying on his activity. The rule
ensure compliance with law and lawful directions made is premised upon the very nature of the activity carried
thereunder. This is a social action litigation on behalf of on. In the words of the Constitution Bench, such an
the villagers whose right to life, is invaded and seriously activity “... can be tolerated only on condition that the
infringed by the respondents as is established by the enterprise engaged in such hazardous or inherently
various reports of the experts called for, and filed before, dangerous activity indemnifies all those who suffer on
the Court. If an industry is established without obtaining account of the carrying on of such hazardous or inherently
the requisite permission and clearances and if the industry dangerous activity regardless of whether it is carried on
is continued to be run in blatant disregard of law to the carefully or not”. The Constitution Bench has also
detriment of life and liberty of the citizens living in the assigned the reason for stating the law in the said terms.
vicinity, the Supreme Court has power to intervene and It is that the enterprise (carrying on the hazardous or
protect the fundamental right to life and liberty of the inherently dangerous activity) alone has the resource to
citizens of this country. discover and guard against hazards or dangers - and not
the person affected and the practical difficulty (on the
(Para 54) part of the affected person) in establishing the absence
of reasonable care or that the damage to him was
The contention of respondents that the reports submitted foreseeable by the enterprise. The Bench also observed
by various expert bodies could not be relied upon by the that such liability is not subject to any of the exceptions
Court in absence of opportunity to cross-examine the which operate vis-à-vis the tortious principle of strict
experts cannot be accepted. These reports were called liability under the rule in Rylands v. Fletcher. The twin
by the Court and several orders passed on the basis of tests laid down in Rylands v. Fletcher - apart from the
those reports. It was never suggested on behalf of proof of damage to the plaintiff by the act/negligence of
offending industrial units (Respondents 4 to 8) that unless the defendants - which must be satisfied to attract its
they are permitted to cross-examine the experts or the rule are ‘foreseeability’ and ‘non-natural’ user of the land.
persons who made those reports, their reports cannot be The observation of Ranganath Misra, C.J. in his
acted upon. This objection, urged at this late stage of concurring opinion in Union Carbide Corpn. case that
proceedings - after a lapse of several years - is wholly the view declared in Oleum was only obiter cannot be
unacceptable. The persons who made the said reports accepted. It does not appear to be unnecessary for the
are all experts in their field and under no obligation either purposes of that case. Thus the law stated by the Supreme
to the State Pollution Control Board or for that matter to Court in Oleum Gas Leak case is by far the more
any other person or industry. It is in view of their appropriate one - apart from the fact that it is binding.
independence and competence that their reports were (Paras 65, 58 and 62).
relied upon and made the basis of passing orders by the
Supreme Court from time to time. (Para 54) M.C. Mehta v. Union of India, (1987) J SCC 395:
1987 SCC (L&S) 37, affirmed Rylands v. Fletcher,
Relying on the reports submitted by the National (1868) LR 3 HL 330: (186-73) All ER Rep. 1,
Environmental Engineering Research Institute by the disapproved Union Carbide Corpn. v. Union of India,
Central team (experts from the Ministry of Environment (1991) 4 SCC 584, paras 14 and 15, overruled on
and Forests, Government of India) and the Rajasthan this aspect
PCB, it must be held that the respondents alone were
responsible for all the damage to the soil, to the Cambridge Water Co. Ltd. v. Eastern Counties
underground water and to the village in general.(Paras Leather, plc, (1994) 2 WLR 53: (1994) 1
54 and 57).
All ER 53; Burnie Port Authority v. General Jones
[See also ‘Conclusions’ at para 69]. Pty Ltd., (1994) 68 Aus I.J. 331, considered.
396
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
Pravinbhai Jashbhai Patel v. State of Gujarat, (1995) out the remedial measures, its recovery/realization and
2 GLR 1210: (1995) 2 GLH 352, referred to the task of undertaking the remedial measures is placed
upon the Central Government in the light of the
Ballard v. Tomlinson, (1885) 29 Ch D 115: (1881-5) provisions of the Environment (Protection) Act, 1986.
All ER Rep 688, cited It is, of course, open to the Central Government to take
the help and assistance of State Government, the
The question of liability of the respondents to defray the Rajasthan Pollution Control Board or such other agency
costs of remedial measures can also be looked into from or authority, as they think fit. It is but appropriate that
another angle, which has now come to be accepted an estimate of the cost of remedial measures be made
universally as a sound principle, viz., the “Polluter Pays” now with notice to the respondents, which amount should
principle. According to this principle, the responsibility be paid to Central Government and/or recovered from
for repairing the damage is that of the offending industry. them by the Central Government. Other directions are
(Para 67) also called for in the light of the facts and circumstances
mentioned above. (Paras 67 and 68)
Carolyn Shelbourn: “Historic Pollution - Does the
Polluter Pay”? - Journal of Planning and [See ‘Directions’ in para 70]
Environmental Law, Aug. 1974 issue), approved.
Read with the wide definition of ‘environment’ in Section Suggested Case Finder Search Text:
2(a), Sections 3 and 5 clothe the Central Government
with all such powers as are “necessary or expedient for (1)
the purpose of protecting and improving the quality of
the environment”. The Central Government is Environment or ecology or pollution or (hazardous
empowered to take all measures and issue all such near substance*
directions as are called for the above purpose. Levy of
costs required for carrying out remedial measures is Search again:
implicit in Sections 3 and 4. (Para 60)
Compensation or costs or directions
In the present case, the said powers will include giving
directions for the removal of sludge, for undertaking
remedial measures and also the power to impose the cost Rylands or “strict liability” not criminal
of remedial measures on the offending industry and
utilize the amount so recovered for carrying out remedial
measures. The Supreme Court can certainly give D. Constitution of India - Arts. 32 and 21, 48-A & 51-
directions to the Central Government or its delegate to A(g) - PIL - Environmental pollution - Central
take all such measures, if in a given case the Court finds Government directed to consider and examine the
that such directions are warranted. Therefore, appropriate advisability of treating chemical industries as a category
directions can be given by the Court to the Central apart for scrutinising their establishments and functioning
Government to invoke and exercise those powers with more rigorously and allowing these industries to be
such modulations as are called for in the facts and established in arid area (most of them being water-
circumstances of this case. (Paras 60 and 66) intensive industries); establishment of environment
courts; strengthening the environment protection
Indian Council for Enviro-Legal Action v. Union of machinery both at the Centre and the States and providing
India, (1995) 3 SCC 77: (1995) 5 Scale 578, relied them more teeth; personal accountability of the industrial
on units directed to be considered and examined by Central
Further, in this case, there is a clear violation of law and Government - Environment (Protection)
disobedience to the orders of the Supreme Court apart
from the orders of the lawful authorities. In this respect Act, 1986, Ss.3 to 5.
it is distinct from Oleum Gas Leak case. The Supreme
Court has to ensure the observance of law and of its orders [Paras 70(4), (6) and (7)]
as a part of enforcement of fundamental rights. That
power cannot be disputed. If so, the Court is competent E. Constitution of India - Art. 32 - PIL - Costs - Actions
to make orders necessary for a full and effective of voluntary bodies in furtherance of public interest
implementation of its orders - and that includes the deserve encouragement - Hence while allowing the public
imposition and recovery of cost of all measures including interest writ petition respondents directed to pay
remedial measures. (Para 60) Rs.50,000 by way of costs to the petitioner - Supreme
Court Rules, 1966, Or. 41. (Para 71)
However, in all the circumstances, it is appropriate that
the task of determining the amount required for carrying R-M/15795/C
397
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Advocates who appeared in this case: anything else. And the law seems to have been helpless.
Systemic defects? It is such instances which have led
Altaf Ahmed, Additional Solicitor General, Harish N. many people in this country to believe that disregard of
Salve, K.N. Bhat and P.P. Malhotra, Senior Advocates law pays and that the consequences of such disregard
(M.C. Mehta, Ms. Seema Midha, K.R.R. Pillai, P.R. will never be visited upon them - particularly, if they are
Seetharaman, R.P. Wadhwani, K.S. Rohtagi, M.K. men with means. Strong words indeed - but nothing less
Aggarwal, Ms. Aparna Rohtagi, Mukul Mudgal, would reflect the deep sense of hurt, the hearing of this
Aruneshwar Gupta, S.B. Wad, Surya Kant, Ms. Sushma case has instilled in us. The facts of the case will bear
Suri and Wasim A. Qadri, Advocates, with them) for the out these opening remarks.
appearing parties.
2. Bichhri is a small village in Udaipur District of
Chronological list of cases cited Rajasthan. To its north is a major industrial
establishment, Hindustan Zinc Limited, a public sector
1. (1995) 3 SCC 77: (1995) 5 Scale 578, Indian concern. That did not affect Bichhri. Its woes began
Council for Enviro-Legal Action v. Union of India somewhere in 1987 when the fourth respondent herein,
43.60 Hindustan Agro Chemicals Limited started producing
certain chemicals like Oleum (said to be the concentrated
2. (1995) 2 GLR 1210: (1995) s GLH 352, Pravinbhai form of sulfuric acid) and Single Super Phosphate. The
Jashbhai Patel v. State of Gujara t 4.46 real calamity occurred when a sister concern, Silver
Chemicals (Respondent 5), commenced production of
3. (1994) 2 WLR 53: (1994) 1 All ER 53, Cambridge ‘H’ acid in a plant located within the same complex. ‘H’
Water Co. Ltd. v. Eastern Counties Leather, plc 63 acid was meant for export exclusively. Its manufacture
gives rise to enormous quantities of highly toxic effluents
4. (1994) 68 Aus LJ 331, Burnie Port Authority v. - in particular, iron-based and gypsum-based sludge -
General Jones Pty Ltd. 64 which if not properly treated, pose grave threat to Mother
Earth. It poisons the earth, the water and everything that
5. (1991) 4 SCC 584, Union Carbide Corpn. v. Union comes in contact with it. Jyoti Chemicals (Respondent
of India 46, 59 8) is another unit established to produce ‘H’ acid, besides
some other chemicals. Respondents 6 and 7 were
6. 1987) SCC 395: 1987 SCC (L&S) 37, M.C. Mehta established to produce fertilizers and a few other
v. Union of India38, 43, 46, 58, 59, 60, 61, 65, 66, products.
69
3. All the units/factories of Respondents 4 and 8 are
7. (1885) 29 Ch D 115: (1881-5) All ER Rep 688, situated in the same complex and are controlled by the
Ballard v. Tomlinson 63 same group of individuals. All the units are what may
be called “chemical industries”. The complex is located
8. (1868) LR 3 HL 330: (1861-73) All ER Rep 1, within the limits of Bichhri village.
Rylands v. Fletcher 58, 59, 61, 63, 64
4. Because of the pernicious wastes emerging from the
production of ‘H’ acid, its manufacture is stated to have
been banned in the western countries. But the need of
THE JUDGEMENT OF THE COURT WAS ‘H’ acid continues in the West. That need is catered to
DELIVERED BY B.P. JEEVAN REDDY, J.- by the industries like the Silver Chemicals and Jyoti
Chemicals in this part of the world. (A few other units
Writ Petition (C) No.967 of 1989 producing ‘H’ acid have been established in Gujarat, as
would be evident from the decision of the Gujarat High
1. This writ petition filed by an environmentalist Court in Pravinbhai Jashbhai Patel v. State of Gujarat2, a
organization brings to light the woes of people living in decision rendered by one of us, B.N. Kirpal, J, as the
the vicinity of chemical industrial plants in India. It Chief Justice of that Court.) Silver Chemicals is stated
highlights the disregard, nay, contempt for law and lawful to have produced 375 MT of ‘H’ acid. The quantity of
authorities on the part of some among the emerging breed ‘H’ acid produced by Jyoti Chemicals is not known. It
of entrepreneurs, taking advantage, as they do, of the says that it produced only 20 MT, as trial production,
country’s need for industrialization and export earnings. and no more. Whatever quantity these two units may
Pursuit of profit has absolutely drained them of any have produced, it has given birth to about 2400-2500
feeling for fellow human beings - for that matter, for MT of highly toxic sludge (iron-based sludge and
2
(1995) 2 GLR 1210: (1995) 2 GLH 352
398
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
gypsum-based sludge) besides other pollutants. Since (Prevention and Control of Pollution) Act, 1981 (Air
the toxic untreated waste waters were allowed to flow Act), again subject to certain conditions. However,
out freely and because the untreated toxic sludge was this unit changed its product without clearance from
thrown in the open in and around the complex, the toxic the Board. Instead of sulfuric acid, it started
substances have percolated deep into the bowels of the manufacturing Oleum and Single SuperPhosphate
earth polluting the aquifers and the subterranean supply (SSP). Accordingly, consent was refused to the unit
of water. The water in the wells and the streams has on 16-2-1987. Directions were also issued to close
turned dark and dirty rendering it unfit for human down the unit.
consumption. It has become unfit for cattle to drink and
for irrigating the land. The soil has become polluted (b) Re Silver Chemicals (R-5): This unit was promoted
rendering it unfit for cultivation, the mainstay of the by the fourth respondent without obtaining “No
villagers. The resulting misery to the villagers needs no Objection Certificate” from the Board for the
emphasis. It spread disease, death and disaster in the manufacture of ‘H’ acid. The waste water generated
village and the surrounding areas. This sudden from the manufacture of ‘H’ acid is highly acidic
degradation of earth and water had an echo in Parliament and contains very high concentration of dissolved
too. An Honourable Minister said, action was being solids along with several dangerous pollutants. This
taken, but nothing meaningful was done on the spot. The unit was commissioned in February 1988 without
villagers then rose in virtual revolt leading to the obtaining the prior consent of the Board and
imposition of Section 144 CrPC by the District Magistrate accordingly, notice of closure was served on 30—
in the area and the closure of Silver Chemicals in January 4-1988. On 12-5-1988, the unit applied for consent
1989. It is averred by the respondents that both the units, under Water and Air Acts which was refused. The
Silver Chemicals and Jyoti Chemicals have stopped Government was requested to issue directions for
manufacturing ‘H’ acid since January 1989 and are cutting off the electricity and water to this unit but
closed. We may assume it to be so. Yet the consequences no action was taken by the Government. The unit
of their action remain - the sludge, the long-lasting was found closed on the date of inspection, viz., 2-
damage to earth, to underground water, to human beings, 10-1989.
to cattle and the village economy. It is with these
consequences that we are to contend with in this writ (c) Re Rajasthan Multi Fertilizers (R-6): This unit was
petition. installed without obtaining prior “No Objection
Certificate” from the Board and without even
applying for consent under Water and Air Acts.
5. The present social action litigation was initiated in Notice was served on this unit on 20-2-1989. In
August 1989 complaining precisely of the above situation reply whereto, the Board was informed that the unit
and requesting for appropriate remedial action. To the was closed since last three years and that electricity
writ petition, the petitioner enclosed a number of has also been cut off since 12-2-1988.
photographs illustrating the enormous damage done to
water, cattle, plants and to the area in general. A good (d) Re Phosphates India (R-7): This unit was also
amount of technical data and other material was also established without obtaining prior “No Objection
produced supporting the averments in the writ petition. Certificate” from the Board nor did it apply for
consent under the Water and Air Acts. When notice
Counter-affidavits of the dated 20-2-1989 was served upon this unit, the
Respondents Management replied that this unit was closed for a
long time.
6. On notice being given, counter-affidavits have been
filed by the Government of India, Government of (e) Re Jyoti Chemicals (R-8): This unit applied for “No
Rajasthan, Rajasthan Pollution Control Board (RPCB) Objection Certificate” for producing ferric alum.
and Respondents 4 to 8. Since the earliest counter- “No Objection Certificate” was issued imposing
affidavit in point of time is that of RPCB, we shall refer various conditions on 8-4-1988. The “No Objection
to it in the first instance. It was filed on 26-10-1989. Certificate” was withdrawn on 30-5-1988 on
The following are the averments: account of non-compliance with its conditions. The
consent applied for under Water and Air Acts by
(a) Re Hindustan Agro Chemicals Limited (R-4). The this unit was also refused. Subsequently, on 9-2-
unit obtained “No Objection Certificate” from the 1989, the unit applied for fresh consent for
PCB for manufacturing sulfuric acid and alumina manufacturing ‘H’ acid. The consent was refused
sulphate. The Board granted clearance subject to on 30-5-1989. The Board has been keeping an eye
certain conditions. Later “No Objection Certificate” upon this unit to ensure that it does not start the
was granted under the Water (Prevention and manufacture of ‘H’ acid. On 2-10-1989, when the
Control of Pollution) Act, 1974 (Water Act) and Air unit was inspected, it was found closed.
399
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
7. The Board submitted further (in its counter-affidavit) few new wells, down the aquifer start showing signs
that the sludge lying in the open in the premises of of pollution. This has created serious problems for
Respondents 4 to 8 ought to be disposed of in accordance water supply for domestic purposes, cattle-watering,
with the provisions contained int he Hazardous Wastes crop irrigation and other beneficial uses, and it has
also caused human illness and even death, degrada-
(Management and Handling) Rules, 1989 framed under
tion of land and damage to fruit,, trees and other veg-
Environment (Protection) Act, 1986. According to the etation. There are serious apprehensions that the
Board, the responsibility for creating the said hazardous pollution and its harmful effects will spread further
situation was squarely that of Respondents 4 to 8. The after the onset of the monsoon as the water percolat-
Board enclosed several documents to its counter in ing from the higher parts of the basin moves down
support of the averments contained therein. carrying the pollutants lying on the slopes - in the
holding pond and those already underground.”
8. The Government of Rajasthan filed its counter-
affidavit on 20-1-1990. It made a curious statement in 10. Each of the Respondents 4 to 8 filed separate counter-
para 3 to the following effect: affidavits. All the affidavits filed on behalf of these
respondents are sworn to by Lt. Gen. M.L. Yadava, who
“(T)hat the State Government is now aware of the described himself as the President of each of these units.
pollution of underground water being caused by liq- In the counter-affidavit filed on behalf of the fourth
uid effluents from the firms arrayed as Respondents respondent, it is stated that it is in no way responsible
4 to 8 in the writ petition. Therefore, the State Gov- for the situation complained of. It is engaged in the
ernment has initiated action through the Pollution
manufacture of sulfuric acid and had commenced its
Control Board to check further spread of pollution.”
operations on 6-1-1987. It has been granted “No
The State Government stated that the water in certain Objection Certificates” from time to time. The consent
wells in Bichhri village and some other surrounding obtained from RPCB is valid up to 15-8-1988.
villages has become unfit for drinking by human beings Application for extension of consent has already been
and cattle, though in some other wells, the water remains filed. This counter-affidavit was filed on 18-1-1990.
unaffected.9. The Ministry of Environment and Forests,
Government of India filed its counter on 8-2-1990. In 11. In the counter-affidavit filed on behalf of the fifth
their counter, the Government of India stated that Silver respondent (Silver Chemicals), it is stated that the
Chemicals was merely granted a Letter of Intent but it manufacture of ‘H’ acid which was commenced in
never applied for conversion of the Letter of Intent into February 1988 has been completely stopped after January
industrial licence. Commencing production before 1989. The respondent is fully conscious of the needs to
obtaining industrial licence is an offence under Industries conserve and protect environment and is prepared fully
(Development and Regulation) Act, 1951. So far as Jyoti to cooperate in that behalf. It is ready to comply with
Chemicals is concerned, it is stated that it has not any stipulations or directions that may be made for the
approached the Government at any time even for a Letter purpose. It, however, submitted that the real culprit is
of Intent. The Government of India stated that in June Hindustan Zinc Limited. The Archaeological Department
1989, a study of the situation in Bichhri village and some of the Government of Rajasthan had issued environmental
other surrounding villages was conducted by the Centre clearance for its unit (rather surprising statement). “No
for Science and Environment. A copy of their report is Objection Certificates” had also been issued by the
enclosed to the counter. The report states the Executive Engineer (Irrigation), Udaipur Division and the
consequences emanating from the production of ‘H’ acid Wild Life Warden. So far as the requirement of ‘consent’
and the manner in which the resulting wastes were dealt under Water and Air Acts is concerned, it merely stated
with by Respondents 4 to 8 thus: that it had applied for it. Its closure in January 1989 was
on account of promulgation of an order under Section
“The effluents are very difficult to treat as many of 144 CrPC by the District Magistrate in view of widespread
the pollutants present are refractory in nature. Set- agitation by the villagers against its functioning.
ting up such highly polluting industry in a critical
groundwater area was essentially ill-conceived. The 12. In the counter-affidavit filed on behalf of the sixth
effluents seriously polluted the nearby drain and over-
respondent (Rajasthan Multi Fertilizers), it is stated that
flowed into Udaisagar main canal, severely corrod-
ing its cement-concrete lined bed and banks. The it commenced production on 14-3-1982 and closed down
polluted waters also seriously degraded some agri- in December 1985. Electrical connection to it was
cultural land and damaged standing crops. On being disconnected on 13-2-1988. It was submitted that since
ordered to contain the effluents, the industry installed it is a small-scale industry, no consent was asked for from
an unlined holding pond within its premises and re- anyone. It denied that it was causing any pollution, either
sorted to spraying the effluent on the nearby hill slope. ground, air or water.
This only resulted in extensive seepage and percola-
tion of the effluents into groundwater and their spread 13. In the counter-affidavit filed on behalf of the seventh
down the aquifer. Currently about 60 wells appear
respondent (Phosphates India), it is stated that this unit
to have been significantly polluted but every week a
400
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
commenced production on 15-5-1988 but was closed on the manufacture of ‘H’ acid in their plants and that they
and with effect from 1-9-1988 for want of support from did not propose to resume its manufacture. The court
the Central Government in the form of subsidies. It also took note of the petitioner’s statement that though
submitted that it has merged with the fourth respondent the manufacture of ‘H’ acid may have been stopped, a
in 1987-88. large quantity of highly dangerous effluent waste/sludge
has accumulated in the area and that unless properly
14. In the counter-affidavit filed on behalf of the eighth treated, stored and removed, it constitutes a serious
respondent (Jyoti Chemicals), it is stated that it has no danger to the environment. Directions were given to the
electrical connection, that it had commenced production RPCB to arrange for its transportation, treatment and safe
in April 1987 and closed down completely in January storage according to the technically accepted procedures
1989. It is stated that the unit produced ‘H’ acid to an for disposal of chemical wastes of that kind. All
extent of 20 MT as a trial measure for one month with reasonable expenses for the said operation were to be
the permission of the Industries Department. It is no borne by Respondents 4 to 8 (hereinafter referred to in
longer manufacturing ‘H’ acid and, therefore, is not this judgement as the ‘respondents’). So far as the
responsible for causing any pollution. It is further polluted water in the well was concerned, the court noted
submitted that it is a small-scale industry and was the offer made by the learned counsel for the respondents
registered with the District Industry Centre, Udaipur for that they will themselves undertake the de-watering of
the manufacture of ferric alum and ‘H’ acid. It began its the wells. The RPCB was directed to inspect and indicate
operation simultaneously with the fifth respondents, the number and location of the wells to be de-watered.
Silver Chemicals, and several of the clearances are
common to both, as both of them are located together. 18. The matter was next taken up on 4-4-1990. It was
The trial production of ‘H’ acid, it is stated, took place in brought to the notice of the court that no meaningful steps
January 1987. were taken for removing the sludge as directed by this
Court in its order dated 5-3-1990. Since the monsoon
15. Hindustan Zinc Limited was impleaded as the ninth was about to set in, which would have further damaged
respondent at the instance of Respondents 4 to 8. It has the earth and water in the area, the court directed the
filed a counter-affidavit denying that it is responsible in respondents to immediately remove the sludge from the
any manner for causing any pollution in Bichhri village open spaces where it was lying and store it in safe places
or the surrounding areas. According to it, its plants are to avoid the risk of seepage of toxic substances into the
situated downstream, towards north of Bichhri village. soil during the rainy season. The respondents were
We do not think it necessary to refer to this affidavit in directed to complete the task within five weeks therefrom.
any detain inasmuch as we are not concerned, in this
writ petition, with the pollution, if any, caused by the 19. It is not really necessary to refer to the contents of
ninth respondent in other villages but only with the the various orders passed in 1990 and 1991, i.e.,
pollution caused by Respondents 4 to 8 in Bichhri or subsequent to the order dated 4-4-1990 for the present
surrounding villages. purposes. Suffice it to say that the respondents did not
comply with the direction to store the sludge in safe
places. The de-watering of wells did not prove possible.
Orders passed and steps taken during the There was good amount of bickering between the
period 1989-1992 respondents on one side and the RPCB and the Ministry
of Environment and Forests on the other. They blamed
16. The first considered order made, after hearing the each other for lack of progress in the matter of removal
parties, by this Court is of 11-12-1989. Under this order, of sludge. Meanwhile, years rolled by and the hazard
the court requested the National Environmental continued to rise. NEERI submitted an interim report.
Engineering Research Institute (NEERI) to study the (We are, however, not referring to the contents of this
situation in and around Bichhri village and submit their interim report inasmuch as we would be referring to the
report “as to the choice and scale of the available remedial contents of the final report presently after referring to a
alternatives”. NEERI was requested to suggest both few more relevant orders of this Court.)
short-term and long-term measures required to combat
the hazard already caused. Directions were also made 20. On 17-2-1992, this Court passed a fairly elaborate
for supply of drinking water to affected villages by the order observing that respondents 5 to 8 are responsible
State of Rajasthan. The RPCB was directed to make for discharging the hazardous industrial wastes; that the
available to the court the Report it had prepared manufacture of ‘H’ acid has given rise to huge quantities
concerning the situation in Bichhri village. of iron sludge and gypsum sludge - approximately 2268
MT of gypsum-based sludge and about 189 MT of iron-
17. On the next date of hearing, i.e. 5-3-1990, the court based sludge: that while the respondents blamed
took note of the statements made on behalf of Respondent 9 as the main culprit, Respondent 9 denied
Respondents 4 to 8 that they have completely stopped any responsibility therefor. The immediate concern, said
401
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
the Court, was the appropriate remedial action. The Orders passed in 1993, filing of Writ Petition
report of the RPCB presented a disturbing picture. It (C) No. 76 of 1994 by
stated that the respondents have deliberately spread the Respondent 4 and the orders passed therein
hazardous material/sludge all over the place which has
only heightened the problem of its removal and that they 24. With a view to find out the connection between the
have failed to carry out the order of this Court dated 4-4- wastes and sludge resulting from the production of ‘H’
1990. Accordingly, the court directed the Ministry of acid and the pollution in the underground water, the court
Environment and Forests, Government of India to depute directed on 20-8-1993, that samples should be taken of
its experts immediately to inspect the area to ascertain the entombed sludge and also of the water from the
the existence and extent of gypsum-based and iron-based affected wells and sent for analysis. Environment experts
sludge, to suggest the handling and disposal procedures of the Ministry of Environment and Forests were asked
and to prescribe a package for its transportation and safe to find out whether the pollution in the well water was
storage. The cost of such storage and transportation was on account of the said sludge or not. Accordingly,
to be recovered from the respondents. analysis was conducted and the experts submitted the
Report on 1-11-1993. Under the heading ‘Conclusion’,
21. Pursuant to the above order, a team of experts visited the report stated:
the area and submitted a report along with an affidavit
dated 30-3-1992. The report presented a highly 5.0 Conclusion
disturbing picture. It stated that the sludge was found
inside a shed and also at four places outside the shed but 5.1 On the basis of the observations and analysis
within the premises of the complex belonging to the results, it is concluded beyond doubt that the sludge
respondents. It stated further that sludge has been mixed inside the entombed pit is the contaminated one as
with soil and at many places it is covered with earth. A evident from the number of parameters analyzed.
good amount of sludge was said to be lying exposed to 5.2 The groundwater is also contaminated due to
sun and rain. The report stated: discharge of H-acid plant effluent as well as H-acid
sludge/contaminated soil leachates as shown in the
“Above all, the extent of pollution in groundwater photographs and also supported by the results. The
seems to be very great and the entire aquifer may be analysis results revealed good correlation between
affected due to the pollution caused by the industry. the colour of well water and H-acid content in it. The
The organic content of the sludge needs to be analysis results show high degree of impurities in
analyzed to assess the percolation property of the sludge/soil and also in well water which is a clear
contents from the sludge. It is also possible that the indication of contamination of soil and groundwater
iron content in the sludge may be very high which due to disposal of H-acid waste.”
may cause the reddish colouration. As the mother
liquor produced during the process (with pH-I) was The report which is based upon their inspection of
highly acidic in nature and was indiscriminately dis- the area in September 1993 revealed many other
charged on land by the unit, it is possible that this alarming features. It represents a commentary on the
might have eroded soil and caused the extensive dam- attitude and actions of the respondents. In para 2,
age. It is also possible that the organic contents of under the heading “Site Observations and Collection
the mother liquor would have gone into soil with of Sludge/Contaminated Soil Samples”, the follow-
water together with the reddish colour.” ing facts are stated:
The report also suggested the mode of disposal of sludge “2.1 The Central team, during inspection of the
and measures for reconditioning the soil. premises of M/s HACL, observed that H-acid sludge
(iron/gypsum) and contaminated soil are still lying
22. In view of the above report, the court made an order at different places, as shown in Fig.1, within the in-
dustrial premises (Photograph 1) which are the lefto-
on 6-4-1992 for entombing the sludge under the
vers. The area, where the solar evaporation pond was
supervision of the officers of the Ministry of Environment existing with H-acid sludge dumped here and there,
and Forests, Government of India. Regarding revamping was observed to have been levelled with borrowed
of the soil, the court observed that for this purpose, it soil (Photograph 2). It was difficult to ascertain
might become necessary to stop or suspend the operation whether the sludge had been removed before filling.
of all the units of the respondent but that, the court said, However, there are visual evidences of contaminated
requires to be examined further. soil in the area.
23. The work of entombment of sludge again faced 2.2 As reported by the Rajasthan Pollution Control
several difficulties. While the respondents blamed the Board (RPCB) representatives, about 720 tonnes out
government officers for the delay, the government of the total contaminated soil and sludge scraped from
officials blamed the said respondents of non-cooperation. the sludge dump sites is disposed of in six lined en-
tombed pits covered by lime/flyash mix, brick soil-
Several orders were passed by this Court in that behalf
ing and concrete (Photographs 3 and 4). The remain-
and ultimately, the work commenced.
402
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
ing scraped sludge and contaminated soil was lying The main grievance in this writ petition was that without
near the entombed pits for want of additional dis- even waiting for the petitioner’s (Hindustan Agro
posal facility. However, during the visit, the left over Chemicals Limited) reply to the show-cause notices,
sludge and contaminated soil could not be traced at orders of closure and disconnection of electricity supply
site. Inspection of the surrounding area revealed that
were passed and that this was done by the RPCB with a
a huge heap of foreign soil of 5 metre height (Photo-
graph 5) covering a large area, as also indicated in mala fide intent to cause loss to the industry. It was also
Fig. 1, was raised on the sloppy ground at the foot- submitted that sudden closure of its plants is likely to
hill within the industry premises. The storm water result in disaster and, may be, an explosion and that this
run-off pathway over the area showed indication of consideration was not taken into account while ordering
H-acid sludge leachates coming out of the heap. Soil the closure. In its Order dated 7-3-1994, this Court found
in the area was sampled for analysis. some justification in the contention of the industry that
the various counter-affidavits filed by the RPCB are self-
2.3 M/s HACL has a number of other industrial units contradictory. The Board was directed to adopt a
which are operating within the same premises with- constructive attitude in the matter. By another order dated
out valid consents from the Rajasthan Pollution Con- 18-3-1994, the RPCB was directed to examine the issue
trol Board (RPCB). These plants are sulfuric acid of grant of permission to restart the industry or to permit
(H2SO4), fertilizer (SSP) and vegetable oil extraction.
any interim arrangement in that behalf. On 8-4-1994, a
The effluent of these units are not properly treated
and the untreated effluent particularly from the acid ‘consent’ order was passed whereunder the industry was
plant is passing through the sludge dump area play- directed to deposit a sum or Rupees sixty thousand with
ing havoc (Photograph 7). The final effluent was RPCB before 11-4-1994 and the RPCB was directed to
collected at the outlet of the factory premises during carry on the construction work of storage tank for storing
operation of these units, at the time of groundwater and retaining ten days’ effluents from the Sulfuric Acid
monitoring in September 1993, by the RPCB. Its Plant. The construction of temporary tank was supposed
quality was observed to be highly acidic (pH: 1.08, to be an interim measure pending the construction of an
Conductivity: 37,100 mg/1, SO 4:21,000 mg/1, Fe: ESP on permanent basis. The order dated 28-4-1994
392 mg/1, COD: 167 mg/1) which was also revealed
noted the report of the RPCB stating that the construction
in the earlier visits of the Central teams. However,
these units were not in operation during the present of temporary tank was completed on 26-4-1994 under
visit.” its supervision. The industry was directed to comply
with such other requirements as may be pointed out by
Under para 4.2.1, the report stated inter alia: RPCB for prevention and control of pollution and
undertake any work required in that behalf forthwith.
“The sludge samples from the surroundings of the Thereafter, the matter went into a slumber until 13-10-
(presently non-existent) solar evaporation and the 1995.
contaminated soil due to seepage from the newly
raised dump site also exhibited very high values of NEERI Report
the above-mentioned parameters. This revealed that
the contaminated soil is buried under the new dump
found by the team.” 27. At this juncture, it would be appropriate to refer to
the report submitted by NEERI on the subject of
25. So much for the waste disposal by the respondents “Restoration of Environmental Quality of the affected
and their continuing good conduct! To the same effect area surrounding Village Bichhri due to paste Waste
is the report of the RPCB which is dated 30-10-1993. Disposal Activities”. This report was submitted in April
1994 and it states that it is based upon the study conducted
26. In view of the aforesaid reports, all of which by it during the period November 1992 to February 1994.
unanimously point out the consequences of the ‘H’ acid Having regard to its technical competence and reputation
production, the manner in which the highly corrosive as an expert body on the subject, we may be permitted to
waste water (mother liquor) and the sludge resulting from refer to its report at some length.
the production of ‘H’ acid was disposed of and the
continuing discharge of highly toxic effluents by the 28. At p.7, the report mentions the industrial wastes
remaining units even in the year 1993, the authorities emerging from the manufacture of ‘H’ acid. It reads:
(RPCB) passed orders closing down, in exercise of their
powers under Section 33-A of the Water Act, the “Solid wastes generated from H-acid manufacturing
operation of the Sulfuric Acid Plant and the solvent process are:
extraction plant including oil refinery of the fourth
respondent with immediate effect. Orders were also Gypsum sludge produced during the neutralization
passed directing disconnection of electricity supply to of acidic solution with lime after nitration stage
the said plants. The fourth respondent filed Writ Petition (around 6 tonnes/tonne of 11-acid manufactured).
(C) No. 76 of 1994 in this Court, under Article 32 of the Iron sludge produced during the reduction stage
Constitution, questioning the said orders in January 1994. (around 0.5 tonnes/tonne of H-acid manufactured).
403
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Gypsum sludge contains mostly calcium sulphate lying in the open. At pp.26 and 27, the report states on
along with sodium salts and organics. Iron sludge the basis of VES investigations that while certain wells
constitutes untreated iron powder, besides ferric salts were found contaminated, others were not. At p.96, the
and organics. report states thus:
It is estimated that, for each tonne of H-acid
manufactured, about 20m 3 of highly corrosive waste
water was generated as mother liquor, besides the Damage to Crops and Trees
generation of around 2.0 m 3 of wash water. The mother
liquor is characterized by low pH (around 2.0) and high The field surveys in contaminated fields in Zones I and
concentration of total dissolved solids (80-280 g/L). High II showed that no crops were coming in the fields
COD of the waste water (90 g/L) could be attributed to particularly in low-lying areas. On some elevated areas,
organics formed during various stages of manufacture. crops like jowar, maize were growing; however the
These include naphthalene trisulphonic acid, nitro growth and yield were very poor.
naphthalene sulfonic acid, Koch acid and H-acid, besides
several other intermediates.” Further it was also observed that even trees like
eucalyptus planted in contaminated fields show leaf
29. At pp.8 and 9, the report describes the manner in burning and stunted growth. Many old trees which were
which the sludge and other industrial wastes were badly affected due to contamination are still growing
disposed of by the respondents. It states inter alia: under stress conditions as a result of soil contamination.
“The total quantities of waste water and that of sludge The top soils at the old dump sites outside the plant
generated were around 8250 m 3 and 2440 tonnes re- premises are still contaminated and require de-
spectively for a production of 375 tonnes by M/s Sil- contamination before the land is used for other purposes.
ver Chemicals Ltd. and M/s Jyoti Chemicals Ltd...
Majority of sludge brought back from disposal sites It was observed that even after the operation of hauling
located outside the plant was transferred inside a cov- the sludge back to the industry premises, some sludge-
ered shed. mixed soil was still lying in the premises of a primary
The sludge lying in the plant premises was entombed school (Table 1.1), which needs de-contamination.”
in the underground pit by RPCB as per the directions
of the Honourable Supreme Court. It may be men- 31. In Chapter 6, the report mentions the remedial
tioned that only 720 MT of sludge out of the esti- measures. Para 6.1 titled INTRODUCTION, states:
mated quantity of 2440 MT could be entombed as
the capacity of the underground tanks provided by
“As could be seen from the data reported in Chapters
the industry for the purpose was only to that extent.
4 and 5, the groundwater and soils within 2 kms from
Remaining sludge and sludge-mixed soil were, how- the plant have been contaminated. After critically
ever, present in the plant premises as these could not scrutinising the data, it was concluded that there is
be transferred into underground tanks. It has also an urgent need to work out a de-contamination strat-
been observed that only sludge above the soil was egy for the affected area. This strategy includes the
removed from the six sites and transferred to the plant de-contamination of the soil, contaminated
site. Sub-surface soil of these sites appears to have groundwater and abandoned dump sites. This chap-
been contaminated as the soil has reddish colour akin ter details the remedial measures that can be consid-
to that of the sludge. ered for implementation to restore the environmen-
tal quality of the affected area.”
A fertilizer plant (single superphosphate), a sulfuric acid
plant and an oil extraction and oil refining plant were in 32. The chapter then sets out the various remedial
operation in the same premises where H-acid was earlier measures, including land treatment, soil washing,
manufactured. The acidic waste water (around pH 1.0) revegetation, control over the flow of the contaminated
presently generated from these units was flowing over water to adjoining lands through canals, leaching of
the abandoned dump site. This leaches the sludge-mixed soluble salts, design of farm to development of agro-
soil from the abandoned dump site and the contaminated forestry and/or forestry plantation with salt tolerant crops/
water flows by gravity towards east and finds its way plants and groundwater de-contamination. Inter alia, the
into a nullah flowing through the compound and conveys report states:
the contaminated water to an irrigation canal which
originates from Udaisagar Lake (Pat 1.4).” “The entire contaminated area comprising of 350 ha
of contaminated land and six abandoned dump sites
(emphasis added) outside the industrial premises has been found to be
ecologically fragile due to reckless past disposal ac-
tivities practiced by M/s Silver Chemicals Ltd. and
30. At p.10, the report mentions the six dump sites
M/s Jyoti Chemicals Ltd. Accordingly, it is suggested
outside the ‘H’ acid plant premises where the sludge was
404
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
that the whole of the contaminated area to be devel- obnoxious waste waters and dumping the same with-
oped as a green belt at the expense of M/s Hindustan out any treatment, contaminating land and
Agrochemicals Ltd. during the monsoon of 1994.” groundwater without any concern for ecology and
33. Under para 6.3.2, the report suggests “De- public health. It is necessary that the provisions of
relevant legislations are imposed on the industry to
contamination Alternatives for Groundwater” including
avoid environmental damage and harm to public wel-
bioremediation, degradation of H-acid by Azotobacter fare.” (emphasis added)
Vinelandit, isolation of bacterial population from H-acid
contaminated soil and several other methods. 36. We do not think that the above report requires any
emphasis at our hands. It speaks for itself - and it speaks
34. Under para 6.4.2, the report mentions the several volumes of the “high regard” the respondents have for
de-contamination alternatives including containment of law!
contaminated soil, surface control, groundwater control,
leachate collection and treatment, gas migration control 37. From p. 179 onwards, the report refers to the damage
and direct waste treatment. to the crops and the land and to the psychological and
mental torture inflicted upon the villagers by the
35. At pp. 157 and 158, the report mentions the respondents and suggests that the principle of “Polluter
continuing discharge of effluents in an illegal and Pays” should be applied in this case inasmuch as “the
dangerous manner. It reports: incident involved deliberate release of untreated acidic
process waste water and negligent handling of waste
“It was also observed by NEERI’s team during the sludge knowing fully well the implication of such acts”.
current study that the industry has not provided ad- The report suggests that compensation should be paid
equate effluent treatment facilities and the waste under two heads, viz., (a) for the losses due to damage
waters (pH<1.5) from the existing plants (sulfuric and (b) towards the cost of restoration of environmental
acid, fertilizer, and oil extraction) are being dis-
quality. It then works out the total cost of restoration of
charged, without treatment, on land within the plant
premises. This indiscriminate and wilful disposal environmental quality at Rs.3738.5 lakhs - i.e. Rs.37.385
activity is further aggravating the contamination prob- crores.
lem in the area. Acidic effluent leaches the pollut-
ants from the dumped sludge and the contaminated 38. Para 7.4 states the conclusions flowing from the
soil and facilitates their penetration through the material in Chapter 6 thus:
ground and thereby increasing the concentration of
sulphates and dissolved solids in groundwater. What “The cost of damage to be disbursed to the affected
is most serious is the fact that the industry produced villagers is estimated at Rs.342.8 lakhs and
chlorosulponic acid for a few months during late 1992 remediation of impacted well waters and soil at
which is a hazardous and toxic substance as per MEF Rs3738.5 lakhs. This cost needs to be borne by the
Notification titled ‘Manufacture, Storage and Import management of the industry in keeping with the Pol-
of Hazardous Chemical Rules, 1989’ and even floated luter Pays principle and the doctrine of Strict/Abso-
public shares for the manufacture of this obnoxious lute liability, as applied to Shri Ram Food and Ferti-
chemical. The production was however ceased due lizers Industry in the case of Oleum leak3 in 1985.”
to the intervention of the Rajasthan Pollution Con-
trol Board in December 1992 as the industry was op-
erating without obtaining site clearance. No Objec- Report of RPCB submitted in January 1996
tion Certificate (NOC)/Consent from the concerned during the final hearing of these matters
appropriate regularity (regulatory?) authorities and
without providing for any pollution-control measures.
It is, therefore, essential for M/s Hindustan 39. When all these matters were posted before the court
Agrochemicals Ltd. to comply with these require- on 13-10-1995, we realized that the matter requires to
ments for carrying out the present industrial activi- be heard on a priority basis. Having regard to the
ties. The abatement of further contamination war- voluminous data gathered by this Court and the several
rants the closure of all industrial operations till an orders passed from time to time, the matter was listed
appropriate effluent treatment plant is installed, and for regular hearing. We heard all the parties at length on
certified by RPCB for its functionality in keeping with 10th, 11th, 16th and 17th January, 1996. We have been
the provisions of Water Act.” taken through the voluminous record. Submissions have
The report adds: also been made on the questions of law arising herein.
“The Industry management in the past (during 1988- 40. At the end of the first day of regular hearing, we
89) has shown scant respect for Pollution Control and made an order calling upon the RPCB to send a team of
Environment Protection Acts. Not only this, the high officials to the spot and report to us the latest position
management continues industrial activity producing of the following aspects:
3
M.C. Mehta v. Union of India (1987) 1 SCC 395: 1987 SCC (L&S)37
405
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
(i) Whether the factories of Silver Chemicals, “3. Village Bichhri and other adjoining areas were visited
Rajasthan Multi Fertilizers and Jyoti Chemicals are by the undersigned officials to know whether gypsum
still working and whether the machinery installed and iron sludge is still lying in the aforesaid area. In
in the said plant is still existing? (This information area adjoining the irrigation canal, sludge mixed with
was required to check the statement of the respond- soil were found on an area of about 3000 sq.ft. The area
ents that the said units are lying closed since last was covered with foreign soil. Sample of the sludge-
several years.) mixed soil was collected for the perusal of the Honourable
Court. Entire premises of M/s Hindustan Agrochemicals
(ii) To report whether the factory or factories of Re- Ltd. was also inspected and sludge mixed with soil was
spondent 4, Hindustan Agrochemicals Limited, are observed in a large area. It was further observed that
working and if they are working, what are the prod- fresh solid in the varying depth has been spread over in
ucts being manufactured by them? The Board was most of the area. In view of the fact that sludge was
also directed to report whether the seventh respond- mixed with the soil and difficult to separate out of the
ent, Phosphate India, which was said to have merged soil it is very difficult to estimate the exact quantity of
with the fourth respondent, is having a separate fac- the sludge required to be removed. Samples of sludge
tory and if so, what is being produced therein? mixed with soil were collected from different parts of
this area after serving due notices under Environment
(iii) The approximate quantity of sludge - whether “iron Protection Act, 1986.”
sludge” or “gypsum sludge” - lying in the area. The
report was to indicate what quantity was entombed So far as the water in the wells was concerned, the report
pursuant to the orders of this Court and whether any mentioned that they took samples from the wells from
sludge was lying in the area or in the premises of Bichhri and other surrounding villages, i.e., from thirty-
the respondents’ complex, its approximate quantity two different locations and that water in sixteen locations
and the time, effort and cost required to remove the was found to “contain colour of varying intensities
same. ranging from very dark brown to light pink which
apparently shows that these wells/handpumps are still
(iv) The Board was also to take samples of the water in polluted”.
wells and tanks in the area and have them analyzed
and tell us whether it is fit for drinking by cattle 42. Shri K.N. Bhat, learned counsel for the
and/or fit for irrigation purposes. respondents, however, submitted that the RPCB
officials have throughout been hostile to the
41. Accordingly, the RPCB officials visited the site and respondents and that, therefore, the reports submitted
have filed a report dated 16-1-1996 along with an by them should not be acted upon. He also submitted
affidavit. The report discloses the following facts: that respondents have had no opportunity to file
objections to the said report or to produce material to
(1) The two units, Silver Chemicals and Jyoti Chemicals, contradict the statements made therein. While taking
do not exist now. There is no machinery. A godown and note of these submissions, we may, however, refer to
a Ferric Alum Plant have been constructed at the site of the letter dated 13-1-1996 written by the fourth
the said plant. The Ferric Alum Plant was not in operation respondent to the RPCB. In this letter, the particulars
at the time of inspection though plant and machinery for of the stocks remaining in cash of its seven plants are
manufacturing it was found installed therein. Certain mentioned along with the date of the last production
old stock of Ferric Alum was also found lying within the in each of those plants. The last dates of production
plant premises. are the following: Sulfuric Acid Plant - 10-11-1995,
SSP Plant (Phosphate India) - 11-11-1995, GSSP Plant
(2) Hindustan Agrochemicals Limited (R-4) has seven (Rajasthan Multi Fertilizers) - 7-7-1995, Solvent
industrial plants, viz., Rajasthan Multi Fertilizers Extraction Plant and Refinery - 2-12-1993, Jyoti
[manufacturing Granulated Single Super Phosphate Chemicals - October 1990 and Chlorosulphonic Acid
(GSSP), a Sulfuric Acid Plant, a Chlorosulphonic Acid Plant - 29-9-1995. It is worthy of note that these dates
Plant, Edible Oil Solvent Extraction Plant, Edible Oil are totally at variance with the dates of closure
Refinery and a Ferric Alum Plant (known as M/s Jyoti mentioned in the counter-affidavits filed by these units
Chemicals), all of which are located within the same in 1990-91.
premises. All these seven plants were found not operating
on the date of inspection by the RPCB officials though
in many cases the machinery and other equipment was Contentions of the parties
in place.
43. Shri M.C. Mehta,, learned counsel appearing for the
So far as the sludge still remaining in the area is petitioner, brought to our notice the several reports, orders
concerned, the report stated: and other material on record. He submitted that the
406
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
abundant material on record clearly establishes the suspect. The respondents had no opportunity to test the
culpability of the respondents for the devastation in veracity of the said reports. If the matter had been fought
Village Bichhri and surrounding areas and their out in a properly constituted suit, the respondents would
responsibility and obligation to properly store the have had an opportunity to cross-examine the experts to
remaining sludge, stop discharge of all untreated effluents establish that their reports are defective and cannot be
by taking necessary measures and defray the total cost relied upon.
required for remedial measures as suggested by NEERI
(Rupees forty crores and odd). Learned counsel (3) Long before the respondents came into existence,
suggested that in view of the saga of repeated and Hindustan Zinc Limited was already in existence close
continuous violation of law and lawful orders on the part to Bichhri village and has been discharging toxic
of the respondents, they must be closed forthwith. So untreated effluents in an unregulated manner. This had
far as the legal propositions are concerned, the learned affected the water in the wells, streams and aquifers. This
counsel relied strongly upon the Constitution Bench is borne out by the several reports made long prior to
decision in M.C. Mehta v. Union of India (Oleum Gas 1987. Blaming the respondents for the said pollution is
Leak case) as well as the recent order of this Court in incorrect as a fact and unjustified.
Indian Council for Enviro-Legal Action v. Union of
India4. Learned counsel also invited our attention to quite (4) The respondents have been cooperating with this
a few foreign decisions and text books on the subject of Court in all matters and carrying out its directions
environment. Shri Altaf Ahmad, the learned Additional faithfully. The report of the RPCB dated 13-11-1992
Solicitor General appearing for the Union of India, also shows that the work of entombment of the sludge was
stressed the need for urgent appropriate directions to almost over. The report states that the entire sludge would
mitigate and remedy the situation on the spot in the light be stored in the prescribed manner within the next two
of the expert reports including the one made by the days. In view of this report, the subsequent report of the
Central team of experts. Central team, RPCB and NEERI cannot be accepted or
relied upon. There are about 70 industries in India
44. The learned counsel for the State of Rajasthan, Shri manufacturing ‘H’ acid. Only the units of the respondents
Aruneshwar Gupta, expressed the readiness of the State have been picked upon by the Central and State
Government to carry out and enforce such orders as this authorities while taking no action against the other units.
Court may think fit and proper in the circumstances. Even in the matter of disposal of sludge, the directions
given for its disposal in the case of other units are not as
45. Shri K.B. Rohatgi, learned counsel for the RPCB, stringent as have been prescribed in the case of
invited our attention to the various orders passed, action respondents. The decision of the Gujarat High Court in
taken, case instituted and reports submitted by the Board Pravinbhai Jashbhai Patel shows that the method of
in this matter. He submitted that until recently the Board disposal prescribed there is different and less elaborate
had no power to close down any industry for violation of than the one prescribed in this case.
environmental laws and that after conferment of such
power, they did pass orders of closure. He denied the (5) The reports submitted by the various so-called expert
allegations of mala fides or hostile intent on the part of committees that sludge is still lying around within and
the Board towards the respondents. Learned counsel outside the respondents’ complex and/or that the toxic
lamented that despite its best ‘efforts. the Board has not wastes from the Sulfuric Acid Plant are flowing through
yet been successful in eradicating the pollution in the and leaching the sludge and creating a highly dangerous
area and hence asked for stringent orders for remedying situation is untrue and incorrect. The RPCB itself had
the appalling conditions in the village due to the acts of constructed a temporary ESP for the Sulfuric Acid Plant
the respondents. pursuant to the orders of this Court made in Writ Petition
(C) No.76 of 1994. Subsequently, a permanent ESP has
46. Shri K.N. Bhat, learned counsel for the respondents, also been constructed. There is no question of untreated
made the following submissions: toxic discharges from this plant leaching with sludge.
There is no sludge and there is no toxic discharge from
(1) The respondents are private corporate bodies. They the Sulfuric Acid Plant.
are not ‘State’ within the meaning of Article 12 of the
Constitution. A writ petition under Article 32 of the (6) The case put forward by the RPCB that the
Constitution, therefore, does not lie against them. respondents’ units do not have the requisite permits/
consents required by the Water Act, Air Act and the
(2) The RPCB has been adopting a hostile attitude Environment (Protection) Act is again unsustainable in
towards these respondents from the very beginning. The law and incorrect as a fact. The respondents’ units were
reports submitted by it or obtained by it are, therefore, established before the amendment of Section 25 of the
4
(1995) 3 SCC 77: (1995) 5 Scale 578
407
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Water Act and, therefore, did not require any prior consent Water (Prevention and Control Pollution) Act, 1974 -
for their establishment. attracted the attention of the State legislatures and
Parliament. The realized the urgency of ensuring that
(7) The proper solution to the present problem lies in domestic and industrial effluents are not allowed to be
ordering a comprehensive judicial enquiry by a sitting discharged into water courses without adequate treatment
Judge of the High Court to find out the causes of pollution and that pollution of rivers and streams was causing
in this village and also to recommend remedial measures damage to the country’s economy. A committee was set
and to estimate the loss suffered by the public as well as up in 1962 to draw a draft enactment for prevention of
by the respondents. While the respondents are prepared water pollution. The issue was also considered by the
to bear the cost of repairing the damage, if any, caused Central Council of Local Self-Government in September
by them, the RPCB and other authorities should be made 1963. The Council suggested the desirability of having
to compensate for the huge loses suffered by the a single enactment for the purpose. A Draft Bill was
respondents on account of their illegal and obstructionist prepared and sent to various States. Several expert
policy adopted towards them. committees also made their recommendations
meanwhile. Since an enactment on the subject was
(8) The decision in Oleum Gas Leak case has been relatable to Entry 17 read with Entry 6 of List II in the
explained in the opinion of Ranganath Misra, C.J., in the Seventh Schedule to the Constitution - and, therefore,
decision in Union Carbide Corpn. v. Union of India5. The within the exclusive domain of the States - the State
law laid down in Oleum Gas Leak case is at variance Legislatures of Gujarat, Kerala, Haryana and Mysore
with the established legal position in other passed resolutions as contemplated by Article 252 of the
Commonwealth countries. Constitution enabling Parliament to make a law on the
subject. On that basis, Parliament enacted the Water
47. Shri Bhat suggested that in the larger interests of (Prevention and Control Pollution) Act, 1974. (The State
environment, industry and public, this Court may direct of Rajasthan too passed the requisite resolution.)
the Government of India to constitute, by proper
legislation, environment courts all over the country - Section 24(1) of the Water Act provides that:
which courts alone should be empowered to deal with
such cases, to give appropriate directions including orders “24. (1) Subject to the provisions of this section, —
of closure of industries wherever necessary, to make
necessary technical and scientific investigations, to (a) no person shall knowingly cause or permit any
suggest remedial measures and to oversee their poisonous, noxious or polluting matter determined in
implementation. Proceedings by way of a writ in this accordance with such standards as may be laid down by
Court under Article 32 or in the High Court under Article the State Board to enter (whether directly or indirectly)
226, the learned counsel submitted, are not appropriate into any stream or well ....”
to deal with such matters, involve as they do several
disputed questions of fact and technical issues. Section 25(1), before it was amended by Act 53 of 1988,
provided that:
48. Before we proceed to deal with the submissions of
the learned counsel, it would be appropriate to notice “25.(1) Subject to the provisions of this section, no
the relevant provisions of law. person shall, without the previous consent of the State
Board, bring into use any new or altered outlet for the
discharge of sewage or trade effluent into a stream or
Relevant statutory provisions well or begin to make any new discharge of sewage or
trade effluent into a stream or well.”
49. Article 48-A is one of the Directive Principles of
State Policy. It says that the State shall endeavour to
protect and improve the environment and to safeguard
the forests and wildlife of the country. Article 51-A sets As amended by Act 53 of 1988, Section 25 now reads:
out the fundamental duties of the citizens. One of them
is “(g) to protect and improve the natural environment “25. (1) Subject to the provisions of this section, no
including forests, lakes, rivers and wild life, and to have person shall, without the previous consent of the State
compassion for living creatures;” Board, -
50. The problem of increasing pollution of rivers and (a) establish or take any steps to establish any industry,
streams in the country - says the Statement of Objects operation or process, or any treatment and disposal
and Reasons appended to the Bill which became the system or an extension or addition thereto, which is
5
(1991) 4 SCC 584
408
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
likely to discharge sewage or trade effluent into a 53. The Central Government has made the Hazardous
stream or well or sewer or on land (such discharge Wastes (Management and Handling) Rules, 1989 in
being hereafter in this section referred to as ‘dis- exercise of the power conferred upon it by Section 6 of
charge of sewage’); or the Environment (Protection) Act prescribing the manner
in which the hazardous wastes shall be collected, treated,
(b) bring into use any new or altered outlets for the dis- stored and disposed of.
charge of sewage; or
(c) begin to make any new discharge of sewage ...” Consideration of the submissions
(It is stated that the Rajasthan Assembly passed resolution 54. Taking up the objections urged by Shri Bhat first,
under Article 252 of the Constitution adopting the said we find it difficult to agree with them. This writ petition
Amendment Act vide Gazette Notification dated 9-5- is not really for issuance of appropriate writ, order or
1990.) Section 33 empowers the Pollution Control Board directions against the respondents but is directed against
to apply to the court, not inferior to that of a Metropolitan the Union of India, Government of Rajasthan and RPCB
Magistrate or a Judicial Magistrate of the First Class, to to compel them to perform their statutory duties enjoined
restrain any person causing pollution if the said pollution by the Acts aforementioned on the ground that their
is likely to prejudicially affect water in a stream or a failure to carry out their statutory duties is seriously
well. Section 33-A, which has been introduced by undermining the right to life (of the residents of Bichhri
Amendment Act 53 of 1988, empowers the Board to order and the affected area) guaranteed by Article 21 of the
the closure of any industry and to stop the electricity, Constitution. If this Court finds that the said authorities
water and any other service to such industry if it finds have not taken the action required of them by law and
such a direction necessary for effective implementation that their inaction is jeopardizing the right to life of the
of the provisions of the Act. Prior to the said Amendment citizens of this country or of any section thereof, it is the
Act, the Pollution Control Board had no such power and duty of this Court to intervene. If it is found that the
the course open to it was to make a recommendation to respondents are flouting the provisions of law and the
the Government to pass appropriate orders including directions and orders issued by the lawful authorities,
closure. this Court can certainly make appropriate directions to
ensure compliance with law and lawful directions made
51. The Air (Prevention and Control of Pollution) Act, thereunder. This is a social action litigation on behalf of
1981 contains similar provisions. the villagers of Bichhri whose right to life, as elucidated
by this Court in several decisions, is invaded and seriously
52. In the year 1986, Parliament enacted a comprehensive infringed by the respondents as is established by the
legislation, Environment (Protection) Act. The Act various reports of the experts called for, and filed before,
defines ‘environment’ to include “water, air and land this Court. If an industry is established without obtaining
and the interrelationship which exists among and between the requisite permission and clearances and if the industry
water, air and land, and human beings, other living is continued to be run in blatant disregard of law to the
creatures, plants, micro-organism and property”. The detriment of life and liberty of the citizens living in the
preamble to the Act recites that the said Act was made vicinity, can it be suggested with any modicum of
pursuant to the decisions taken at the United Nations reasonableness that this Court has no power to intervene
Conference on Human Environment held at Stockholm and protect the fundamental right to life and liberty of
in June 1972 in which India also participated. Section 3 the citizens of this country. The answer, in our opinion,
empowers the Central Government “to take all such is self-evident. We are also not convinced of the plea of
measures as it deems necessary or expedient for the Shri Bhat that RPCB has been adopting a hostile attitude
purpose of protecting and improving the quality of the towards his clients throughout and, therefore, its
environment and preventing, controlling and abating contentions or the reports prepared by its officers should
environmental pollution”. Sub-section (2) elucidates the not be relied upon. If the respondents establish and
several powers inhering in the Central Government in operate their plants contrary to law, flouting all safety
the matter of protection and promotion of environment. norms provided by law, the RPCB was viybd to act. On
Section 5 empowers the Central Government to issue that account, it cannot be said to be acting out of animus
appropriate directions to any person, officer or authority or adopting a hostile attitude. Repeated and persistent
to further the objects of the enactment. Section 6 confers violations call for repeated orders. That is no proof of
rule-making power upon the Central Government in hostility. Moreover, the reports of RPCB officials are
respect of matters referred to in Section 3. Section 7 fully corroborated and affirmed by the reports of the
says that “no person carrying on any industry, operation Central team of experts and of NEERI. We are also not
or process shall discharge or emit or permit to be prepared to agree with Shri Bhat that since the report of
discharged or emitted any environmental pollutant in NEERI was prepared at the instance of RPCB, it is
excess of such standards as may be prescribed”. suspect. This criticism is not only unfair but is also
409
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
uncharitable to the officials of NEERI who have no reason it support Shri Bhat’s contention. It is in para 2(b) that
to be inimical to the respondents. If, however, the actions the sentence, strongly relied upon by Shri Bhat occurs,
of the respondents invite the concern of the experts and viz., “remaining work is likely to be completed by 15-
if they depict the correct situation in their reports, they 11-1992”. For proper appreciation of the purport of the
cannot be accused of any bias. Indeed, it is this Court said sentence, it would be appropriate to read the entire
that asked NEERI to suggest remedial measures and it para 2(b), which is to the following effect:
is in compliance with those orders that NEERI submitted
its interim report and also the final report. Similarly, the “(b) that all the six tanks have been entombed with
objection of Shri Bhat that the reports submitted by the brick toppings. Roofing is complete on all tanks
NEERI, by the Central team (experts from the Ministry which have also been provided with proper outlets
of Environment and Forests, Government of India) and for the exit of gases which may form as a result of
RPCB cannot be acted upon is equally unacceptable. possible chemical reactions in the sludge mass. The
These reports were called by this Court and several orders tanks have also been provided with reinforced con-
passed on the basis of those reports. It was never crete to prevent drooping of the roof. Remaining
suggested on behalf of Respondents 4 to 8 that unless work is likely to be completed by 15-11-1992.”
they are permitted to cross-examine the experts or the
persons who made those reports, their reports cannot be We find it difficult to read the said sentence as referring
acted upon. This objection, urged at this late stage of to the storage of the remaining about 1700 MT of sludge.
proceedings - after a lapse of several years - is wholly When the storage of 720 MT itself took up all the six
unacceptable. The persons who made the said reports tanks provided by the respondent, where was the
are all experts in their field and under no obligation either remaining 1700 tonnes stored? Except relying upon the
to the RPCB or for that matter to any other person or said sentence repeatedly, Shri Bhat has not been able to
industry. It is in view of their independence and tell us where this 1700 MT has been stored, whether in
competence that their reports were relied upon and made tanks and if so, who constructed the tanks and when and
the basis of passing orders by this Court from time to how were they covered and sealed. He is also not able to
time. tell us on what dates the remaining sludge was stored. It
is evident that the aforesaid sentence occurring in clause
55. Now coming to the question of alleged pollution by 2(b) refers to the proper sealing and completion of the
Hindustan Zinc Limited (R-9), it may be that Respondent said tanks wherein 720 MT of sludge was stored. If, in
9 is also responsible for discharging untreated effluents fact, the said 1700 MT has also been entombed, it was
at one or the other point of time but that is not the issue not difficult for the respondents to give the particulars of
we are concerned with in these writ petitions. These the said storage. We are, therefore, unable to agree with
writ petitions are confined to the pollution caused in Shri Bhat that the subsequent reports which repeatedly
Bichhri village on account of the activities of the and uniformly speak of the presence of sludge within
respondent. No report among the several reports placed and outside the complex of the respondents should not
before us in these proceedings says that Hindustan Zinc be accepted. It may be recalled that the report of the
Limited is responsible for the pollution at Bichhri village. team of Central experts was submitted on 1-11-1993
Shri Bhat brought to our notice certain reports stating based upon the inspection made by them in September/
that the discharges from Hindustan Zinc Limited were October 1993. To the same effect is the affidavit of RPCB
causing pollution in certain villages but they are all dated 30-10-1993 and the further affidavit dated 1-12-
downstream, i.e., to the north of Bichhri village and we 1993. These reports together with the report of NEERI
are not concerned with the pollution in those villages in clearly establish that huge quantities of sludge were still
these proceedings. The bringing in of Hindustan Zinc lying around either in the form of mounds or placed in
Limited in these proceedings is, therefore, not relevant. depressions, or spread over the contiguous areas and
If necessary, the pollution, if any, caused by Hindustan covered with local soil to conceal its existence. It is worth
Zinc Limited can be the subject-matter of a separate reiterating that the said sludge is only part of the
proceeding. pernicious discharges emanating from the manufacture
of ‘H’ acid. The other part, which is unfortunately not
56. We may now deal with the contentions of Shri Bhat visible now (except in its deleterious effects upon the
based upon the affidavit of RPCB dated 13-11-1992 soil and underground water) is the “mother liquor”
which has been repeatedly and strongly relied upon by produced in enormous quantities which has either flowed
the learned counsel in support of his submission that the out or percolated into the soil.
entire sludge has been properly stored by or at the expense
of his clients. It is on the basis of this affidavit that Shri 57. So far as the responsibility of the respondents for
Bhat says that the subsequent reports submitted showing causing the pollution in the wells, soil and the aquifers
the existence of sludge within and outside their complex is concerned, it is clearly established by the analysis
should not be accepted or acted upon. Let us turn to the report referred to in the report of the Central experts’
affidavit of RPCB dated 13-11-1992 and see how far does team dated 1-11-1993 (p.1026 of Vol.II). Indeed, number
410
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
of orders passed by this Court, referred to hereinbefore, lated element that caused the harm the enterprise must
are premised upon the finding that the respondents are be held strictly liable for causing such harm as a part
responsible for the said pollution. It is only because of of the social cost of carrying on the hazardous or in-
the said reason that they were asked to defray the cost of herently dangerous activity. If the enterprise is per-
mitted to carry on an hazardous or inherently dan-
removal and storage of sludge. It is precisely for this
gerous activity for its profit, the law must presume
reason that, at one stage, the respondents had also that such permission is conditional on the enterprise
undertaken the de-watering of polluted wells, absorbing the cost of any accident arising on account
Disclaiming the responsibility for the pollution in and of such hazardous or inherently dangerous activity
around Bichhri village, at this stage of proceedings, is as an appropriate item of its overheads. Such haz-
clearly an afterthought. We accordingly hold and affirm ardous or inherently dangerous activity for private
that the respondents alone are responsible for all the profit can be tolerated only on condition that the en-
damage to the soil, to the underground water and to terprise engaged in such hazardous or inherently dan-
Village Bichhri in general, damage which is eloquently gerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or in-
portrayed in the several reports of the experts mentioned
herently dangerous activity regardless of whether it
hereinabove. NEERI has worked out the cost for is carried on carefully or not ... We would therefore
repairing the damage at more than Rupees forty crores. hold that where an enterprise is engaged in a hazard-
Now, the question is whether and to what extent can the ous or inherently dangerous activity and harm results
respondents be made responsible for defraying the cost to anyone on account of an accident in the operation
of remedial measures in these proceedings under Article of such hazardous or inherently dangerous activity
32. Before we advert to this question, it may perhaps be resulting, for example, in escape of toxic gas the en-
appropriate to clarify that so far as removal of remaining terprise is strictly and absolutely liable to compen-
sludge and/or the stoppage of discharge of further toxic sate all those who are affected by the accident and
such liability is not subject to any of the exceptions
wastes are concerned, it is the absolute responsibility of
which operate vis-à-vis the tortious principle of strict
the respondents to store the sludge in a proper manner liability under the rule in Rylands v. Fletcher 6.
(in the same manner in which 720 MT of sludge has
already been stored) and to stop the discharge of any We would also like to point out that the measure of
other or further toxic wastes from its plants including compensation in the kind of cases referred to in the
Sulfuric Acid Plant and to ensure that the wastes preceding paragraph must be collerated to the magnitude
discharged do not flow into or through the sludge. Now, and capacity of the enterprise because such compensation
turning to the question of liability, it would be appropriate must have a deterrent effect. The larger and more
to refer to a few decisions on the subject. prosperous the enterprise, the greater must be the amount
of compensation payable by it for the harm caused on
58. In Oleum Gas Leak case, a Constitution Bench account of an accident in the carrying on of the hazardous
discussed this question at length and held thus: (SCC or inherently dangerous activity by the enterprise.”
pp.420-21. paras 31-32)
59. Shri Bhat, however, points out that in the said
“We are of the view that an enterprise which is en- decision, the question whether the industry concerned
gaged in a hazardous or inherently dangerous indus- therein was a ‘State’ within the meaning of Article 12
try which poses a potential threat to the health and and, therefore, subject to the discipline of Part III of the
safety of the persons working in the factory and re- Constitution including Article 21 was left open and that
siding in the surrounding areas owes an absolute and
no compensation as such was awarded by this Court to
non-delegable duty to the community to ensure that
no harm results to anyone on account of hazardous the affected persons. He relies upon the observations in
or inherently dangerous nature of the activity which the concurring opinion of Ranganath Misra, C.J., in
it has undertaken. The enterprise must be held to be Union Carbide Corpn. The learned Chief Justice referred
under an obligation to provide that the hazardous or in the first instance, to the propositions enunciated in
inherently dangerous activity in which t is engaged Oleum Gas Leak case and then made the following
must be conducted with the highest standards of observations in paras 14 and 15: (SCC pp.607-08)
safety and if any harm results on account of such ac-
tivity, the enterprise must be absolutely liable to com- “14. In M.C. Mehta case, no compensation was
pensate for such harm and it should be no answer to awarded as this Court could not reach the conclusion
the enterprise to say that it had taken all reasonable that Shriram (the delinquent company) came within
care and that the harm occurred without any negli- the meaning of ‘State’ in Article 12 so as to be liable
gence on its part. Since the persons harmed on ac- to the discipline of Article 21 and to be subjected to a
count of the hazardous or inherently dangerous ac- proceeding under Article 32 of the Constitution. Thus
tivity carried on by the enterprise would not be in a what was said was essentially obiter.
position to isolate the process of operation from the
hazardous preparation of substance or any other re-
6
(1868) LR 3 HL 330: (1861-73) All ER Rep 1
411
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
15. The extracted part of the observations from M.C. the offending industry and utilize the amount so recovered
Mehta case perhaps is a good guideline for working for carrying out remedial measures. This Court can
out compensation in the cases to which the ratio is certainly give directions to the Central Government/its
intended to apply. The statement of the law ex facie delegate to take all such measures, if in a given case this
makes a departure from the accepted legal position
Court finds that such directions are warranted. We find
in Rylands v. Fletcher 7. We have not been shown
any binding precedent from the American Supreme that similar directions have been made in a recent decision
Court where the ratio of M.C. Mehta decision has in of this Court in Indian Council for Enviro-Legal Action.
terms been applied. In fact Bhagwati, C.J. clearly That was also a writ petition filed under Article 32 of the
indicates in the judgement that his view is a depar- Constitution. Following is the direction:
ture from the law applicable to western countries.”
“It appears that the Pollution Control Board had iden-
60. The majority judgement delivered by M.N. tified as many as 22 industries responsible for the
Venkatachaliah, J. (on behalf of himself and two other pollution caused by discharge of their effluents into
learned Judges) has not expressed any opinion on this Nakkavagu. They were responsible to compensate
to farmers. It was the duty of the State Government
issue. We on our part find it difficult to say, with great
to ensure that this amount was recovered from the
respect to the learned Chief Justice, that the law declared industries and paid to the farmers.”
in Oleum Gas Leak case is obiter. It does not appear to
be unnecessary for the purposes of that case. Having It is, therefore, idle to contend that this Court cannot make
declared the law, the Constitution Bench directed the appropriate directions for the purpose of ensuring
parties and other organizations to institute actions on the remedial action. It is more a matter of form.
basis of the law so declared.8 Be that as it may, we are of
the considered opinion that even if it is assumed (for the 61. Shri K.N. Bhat submitted that the rule of absolute
sake of argument) that this Court cannot award damages liability is not accepted in England or other
against the respondents in these proceedings that does Commonwealth countries and that the rule evolved by
not mean that the Court cannot direct the Central the House of Lords in Rylands v. Fletcher is the correct
Government to determine and recover the cost of remedial rule to be applied in such matters. Firstly, in view of the
measures from the respondents. Section 3 of the binding decision of this Court in Oleum Gas Leak case,
Environment (Protection) Act, 1986 expressly empowers this contention is untenable, for the said decision
the Central Government (or its delegate, as the case may expressly refers to the rule in Rylands but refuses to apply
be) to “take all such measures as it deems necessary or it saying that it is not suited to the conditions in India.
expedient for the purpose of protecting and improving Even so, for the sake of completeness, we may discuss
the quality of environment ...”. Section 5 clothes the the rule in Rylands and indicate why that rule is
Central Government (or its delegate) with the power to inappropriate and unacceptable in this country. The rule
issue directions for achieving the objects of the Act. Read was first stated by Blackburn, J. (Court of Exchequer
with the wide definition of ‘environment’ in section 2(a), Chamber) in the following words: (All ER p.7)
Sections 3 and 5 clothe the Central Government with all
such powers as are “necessary or expedient for the “We think that the true rule of law is that the person
purpose of protecting and improving the quality of the who, for his own purposes, brings on his land and
environment”. The Central Government is empowered collects and keeps there anything likely to do mis-
to take all measures and issue all such directions as are chief if it escapes, must keep it in at his peril, and, if
he does not do so, he is prima facie answerable for
called for the above purpose. In the present case, the
all the damage which is the natural consequence of
said powers will include giving directions for the removal its escape. He can excuse himself by showing that
of sludge, for undertaking remedial measures and also the escape was owing to the plaintiff’s default, or
the power to impose the cost of remedial measures on perhaps, that the escape was the consequence of vis
7
(1868) KR 3 HL 330: (1861 - 73) All ER Rep 1
8
A distinction between the Oleum Gas Leak case and the present case may be noticed. That was not a case where the industry was established
or was being operated contrary to Law as in the present case. That was also not a case where the orders of lawful authorities and courts were
violated with impunity as in this case. In this case, there is a clear violation of Law and disobedience to the orders of this Court apart from the
orders of the lawful authorities. The facts stated above and findings recorded by us hereinafter bear it out. This Court has to ensure the
observance of law and of its orders as a part of enforcement of fundamental rights. That power cannot be disputed. If so, a question may arise
why is this Court not competent to make orders necessary for a full and effective implementation of its orders - and that includes the imposition
and recovery of cost of all measures including remedial measures. Above all, the Central Government has the power under the provisions of
Sections 3 and 5 of the Environment (Protection) Act, 1986 to levy and recover the cost of remedial measures - as we shall presently point out.
If the Central Government omits to do that duty, this Court can certainly issue appropriate situation, to award damages against private parties
as part of relief granted against public authorities. This is a question upon which we do not wish to express any opinion in the absence of a full
debate at the Bar.
412
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
major, or the act of God; ... and it seems but reason- the harm of the relevant type by the defendant was a pre-
able and just that the neighbour who has brought requisite to the right to recover damages both under the
something on his own property which was not natu- heads of nuisance and also under the rule in Rylands and
rally there, harmless to others so long as it is con- since that was not established by the plaintiff, it has to
fined to his own property, but which knows will be
fail. The House of Lords, no doubt, held that the
mischievous if it gets on his neighbour’s, should be
obliged to make good the damage which ensues if he defendant’s use of the land was a non-natural use but
does not succeed in confining it to his own property.” dismissed the suit as stated above, on the ground that the
plaintiff has failed to establish that pollution of their water
62. The House of Lords, however, added a rider to the supply by the solvent used by the defendant in
above statement, viz., that the user by the defendant hispremises was in the circumstances of the case
should be a “non-natural” user to attract the rule. In other foreseeable by the defendant.
words, if the user by the defendant is a natural user of
the land, he would not be liable for damages. Thus, the 64. The Australian High Court has, however, expressed
twin tests - apart from the proof of damage to the plaintiff its disinclination to treat the rule in Rylands as an
by the act/negligence of the defendants - which must be independent head for claiming damages or as a rule
satisfied to attract this rule are ‘foreseeability’ and ‘non- rooted in the law governing the law of nuisance in Burnie
natural’ user of the land. Port Authority v. General Jones Pty Ltd. 11 The
respondent, General Jones Limited, had stored frozen
63. The rule in Rylands has been approved by the House vegetables in three cold storage rooms in the building
of Lords in the recent decision in Cambridge Water Co. owned by the appellant, Bernie Port Authority
Ltd. v. Eastern Counties Leather, plc9. The plaintiff, (Authority). The remaining building remained under the
Cambridge Water Company, was a statutory corporation occupation of the Authority. The Authority wanted to
engaged in providing public water supply within a certain extend the building. The extension work was partly done
area including the city of Cambridge. It was lifting water by the Authority itself and partly by an independent
from a bore well situated at some distance from Sawstyn. contractor (Wildridge and Sinclair Pty. Ltd). For doing
The defendant-Company Eastern Leather, was having a its work, the contractor used a certain insulating material
tannery in Sawstyn. Tanning necessarily involves called EPS, there was a fire which inter alia damaged
degreasing of pelts. For that purpose, the defendant was the rooms in which General Jones had stored its
using an organo chlorine called PCE. PCE was stored in vegetables. On an action by General Jones, the Australian
a tank in the premises of the defendant. The plaintiff’s High Court held by a majority that the rule in Rylands
case was that on account of the PCE percolating into the having attracted many difficulties, uncertainties,
ground, the water in its well became contaminated and qualifications and exceptions, should not be seen, for the
unfit for human consumption and that on that account it purposes of Australian Common Law, as absorbed by
was obliged to find an alternative source at a substantial the principles of ordinary negligence. The Court held
cost. It sued the defendant for the resulting damages. further that under the rules governing negligence, if a
The plaintiff based his claim on three alternative grounds, person in control of a premises, introduces a dangerous
viz., negligence, nuisance and the rule in Rylands. The substance to carry on a dangerous activity, or allows
trial Judge (High Court) dismissed the action in another to do one f those things, owes a duty of reasonable
negligence and nuisance holding that the defendant could care to ———————————— injury or damage
not have reasonably foreseen that such damage could to the person or property of another. In a case where a
occur to the plaintiff. So far as the rule in Rylands was person or the property of that other is lawfully in a place
concerned, the trial Judge held that the user by the outside the premises, the duty of care varies in degree
defendant was not a non-natural user and hence, it was according to the magnitude of the risk involved and
not liable for damages. On appeal, the Court of Appeal extends to ensuring that such care is taken. Applying
declined to decide the matter on the basis of the rule in the said principle, the court held that the authority allowed
Rylands. It relied strongly upon the ratio in Ballard v. the independent contractor to introduce or retain a
Tomlinson10 holding that no person having a right to use dangerous substance or to engage in a dangerous activity
a common source is entitled to contaminate that source in its premises which substance and activity caused a
so as to prevent his neighbour from having a full value fire that destroyed the goods of General Jones. The
of his right of appropriation. The Court of Appeal also evidence, the court held, established that the independent
opined that the defendant’s use of the land was not a contractor’s work was a dangerous activity in that it
natural use. On appeal by the defendant, the House of involved real and foreseeable risk of a serious
Lords allowed the appeal holding that foreseeability of conflagration unless special precautions were taken. In
9
(1994) 2 WLR 53: (1994) AILER 53
10
(1885) 29 Ch D 115: (1881-5) All ER Rep 688
11
(1994) 68 Aus LJ 331
413
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
the circumstances, it was held that the authority owed a for carrying out remedial measures is implicit in Sections
non-delegable duty of care to General Jones to ensure 3 and 4 which are couched in very wide and expansive
that its contractor took reasonable steps to prevent the language. Appropriate directions can be given by this
occurrence of a fire and the breach of that duty attracted Court to the Central Government to invoke and exercise
liability pursuant to the ordinary principles of negligence those powers with such modulations as are called for in
for the damage sustained by the respondent. the facts and circumstances of this case.
65. On a consideration of the two lines of thought (one 67. The question of liability of the respondents to defray
adopted by the English courts and the other by the the costs of remedial measures can also be looked into
Australian High Court), we are of the opinion that any from another angle, which has now come to be accepted
principle evolved in this behalf should be simple, practical universally as a sound principle, viz., the “Polluter Pays”
and suited to the conditions obtaining in this country. principle. 12
We are convinced that the law stated by this Court in
Oleum Gas Leak case is by far the more appropriate one “The Polluter Pays principle demands that the financial
— apart from the fact that it is binding upon us. (We costs of preventing or remedying damage caused by
have disagreed with the view that the law stated in the pollution should lie with the undertakings which cause
said decision is obiter.) According to this rule, once the the pollution, or produce the goods which cause the
activity carried on is hazardous or inherently dangerous, pollution. Under the principles it is not the role of
the person carrying on such activity is liable to make Government to meet the costs involved in either
good the loss caused to any other person by his activity prevention of such damage, or in carrying out remedial
irrespective of the fact whether he took reasonable care action, because the effect of this would be to shift the
while carrying on his activity. The rule is premised upon financial burden of the pollution incident to the taxpayer.
the very nature of the activity carried on. In the words The ‘Polluter Pays’ principle was promoted by the
of the Constitution Bench, such an activity: (SCC p.421, Organization for Economic Cooperation and
para 31) Development (OECD) during the 1970s when there was
great public interest in environmental issues. During this
“... can be tolerated only on condition that the enter- time there were demands on Government and other
prise engaged in such hazardous or inherently dan- institutions to introduce policies and mechanisms for the
gerous activity indemnifies all those who suffer on protection of the environment and the public from the
account of the carrying on of such hazardous or in- threats posed by pollution in a modern industrialized
herently dangerous activity regardless of whether it
society. Since then there has been considerable
is carried on carefully or not”.
discussion of the nature of the Polluter Pays principle,
The Constitution Bench has also assigned the reason for but the precise scope of the principle and its implications
stating the law in the said terms. It is that the enterprise for those involved in past, or potentially polluting
(carrying on the hazardous or inherently dangerous activities have a never been satisfactorily agreed.
activity) alone has the resource to discover and guard
against hazards or dangers - and not the person affected Despite the difficulties inherent in defining the principle,
and the practical difficulty (on the part of the affected the European Community accepted it as a fundamental
person) in establishing the absence of reasonable care or part of its strategy on environmental matters, and it has
that the damage to him was foreseeable by the enterprise. been one of the underlying principles of the four
Community Action Programmes on the Environment.
66. Once the law in Oleum Gas Leak case is held to be The current Fourth Action Programme [(1987) OJC 328/
the law applicable, it follows, in the light of our findings 1] makes it clear that ‘the cost of preventing and
recorded hereinbefore, that Respondents 4 to 8 are eliminating nuisances must in principle be borne by the
absolutely liable to compensate for the harm caused polluter’, and the Polluter Pays principle has now been
underground water and hence, they are bound to take all incorporated into the European Community Treaty as part
necessary measures to remove the sludge and other of the new articles on the environment which were
pollutants lying in the affected area (by affected area, introduced by the Single European Act of 1986. Article
we mean the area of about 350 ha indicated in the sketch 130-R(2) of the Treaty states that environmental
at p. 178 if NEERI report) and also to defray the cost of considerations are to play a part in all the policies of the
the remedial measures required to restore the soil and community, and that action is to be based on the three
the underground water sources. Sections 3 and 4 of principles: the need for preventive action: the need for
Environment (Protection) Act confers upon the Central environmental damage to be rectified at source; and the
Government the power to give directions of the above polluter should pay.”
nature and to the above effect. Levy of costs required
12
(Historic Pollution - Does the Polluter Pay? by Carolyn Shelbourn ... Journal of Planning and Environmental Law. Aug. 1974 issue.)
414
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
Thus, according to this principle, the responsibility for covered it with earth. In some places, the sludge is
repairing the damage is that of the offending industry. lying in mounds. The story of entombing the entire
Section 3 and 5 empower the Central Government to give quantity of sludge is untrue.
directions and take measures for giving effect to this
principle. In all the circumstances of the case, we think The units manufacturing ‘H’ acid - indeed most of
it appropriate that the task of determining the amount the units of the respondents - had started function-
required for carrying out the remedial measures, its ing, i.e. started manufacturing various chemicals
recovery/realization and the task of undertaking the without obtaining requisite clearances/consents/li-
remedial measures is placed upon the Central cences. They did not instal any equipment for treat-
Government in the light of the provisions of the ment of highly toxic effluents discharged by them.
Environment (Protection) Act, 1986. It is, of course, open They continued to function even after and inspite
to the Central Government to take the help and assistance of the closure orders of the RPCB. They never did
of State Government, RPCB or such other agency or carry out the orders of this Court fully, (e.g. entomb-
authority; as they think fit. ing the sludge) nor did they fulfil the undertaking
given by them to the court (in the matter of removal
68. The next question is what is the amount required for of sludge and de-watering of the wells). In spite of
carrying out the necessary remedial measures to repair repeated reports of officials and expert bodies, they
the damage and to restore the water and soil to the persisted in their illegal course of action, in a bra-
condition it was in before the respondents commenced zen manner, which exhibits their contempt for law,
their operations. The report of NEERI has worked out for the lawful authorities and the courts.
the cost at more than Rupees forty crores. The estimate
of cost of remedial measures is, however, not a technical (ii) That even after the closure of ‘H’ acid plant, the
matter within the expertise of NEERI officials. Moreover, fourth respondent had not taken adequate measures
the estimate was made in the year 1994. Two years have for treating the highly toxic waste water and other
passed by since then. Situation, if at all, must have waste emanating from the Sulfuric Acid Plant. The
deteriorated further on account of the presence of - and untreated highly toxic waste water was found - by
dispersal of the sludge - in and around the complex of NEERI as well as the Central team - flowing through
the respondents by them. They have been discharging the dumps of iron/gypsum sludge creating a highly
other toxic effluents from their other plants, as reported potent mix. The letter of the fourth respondent dated
by NEERI and the Central team. It is but appropriate 13-1-1996, shows that the Sulfuric Acid Plant was
that an estimate of the cost of remedial measures be made working till 10-11-1995. An assertion is made be-
now with notice to the respondents, which amount should fore us that permanent ESP has also been con-
be paid to Central Government and/or recovered from structed for the Sulfuric Acid Plant in addition to
them by the Central Government. Other directions are the temporary tank which was constructed under the
also called for in the light of the facts and circumstances orders of this Court. We express no opinion on this
mentioned above. assertion, which even if true, is valid only for the
period subsequent to April 1994.
Conclusions
(iii) The damage caused by the untreated highly toxic
69. From the affidavits of the parties, orders of this Court, wastes, resulting from the production of ‘H’ acid -
technical reports and other data, referred to above (even and the continued discharge of highly toxic efflu-
keeping aside the latest report of the RPCB), the ent from the Sulfuric Acid Plant, flowing through
following facts emerge: the sludge (H-acid waste - is indescribable. It has
inflicted untold misery upon the villagers and long
(i) Silver Chemicals (R-5) and Jyoti Chemicals (R-8) lasting damage to the soil, to the underground wa-
had manufactured about 375 MT of ‘H’ acid during ter and to the environment of that area in general.
the years 1988-89. This had given rise to about The report of NEERI contains a sketch, at p.178,
82.50 m3 of waste water and 2440 tonnes of sludge showing the area that has been adversely affected
(both iron-based and gypsum-based). The waste by the production of ‘H’ acid by the respondents.
water had partly percolated into the earth in and The area has been divided into three zones on the
around Bichhri and part of it had flowed out. Out basis of the extent of contamination. A total area of
of 2440 tonnes of sludge, about 720 tonnes has been 350 ha has become seriously contaminated. The
stored in the pits provided by the respondents. The water in the wells in that area is not fit for consump-
remaining sludge is still there either within the area tion either by human being or cattle. It has seri-
of the complex of the respondents or outside their ously affected the productivity of the land. Accord-
complex. With a view to conceal it from the eyes ing to NEERI report, Rupees forty crores is required
of the inspection teams and other authorities, the for repairing the damage caused to men, land, wa-
respondents have dispersed it all over the area and ter and the flora.
415
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
(iv) This court has repeatedly found and has recorded in improve and restore the environment in the area. For the
its orders that it is the respondents who have caused purpose of these proceedings, the Secretary, (MEF) and
the said damage. The analysts reports obtained pur- Respondents 4 to 8 shall proceed on the assumption that
suant to the directions of the court clearly establish the affected area is 350 ha, as indicated in the sketch at
that the pollution of the wells is on account of the p.178 of NEERI report. In case of failure of the said
wastes discharged by Respondents 4 to 8, i.e., pro- respondents to pay the said amount the same shall be
duction of ‘H’ acid. The report of the environment recovered by the Central Government in accordance with
experts dated 1-11-1993 has already been referred law. The factories, plant, machinery and all other
to hereinbefore. Indeed, several orders of this Court immovable assets of Respondents 4 to 8 are attached
referred to supra are also based upon the said find- herewith. The amount so determined and recovered shall
ing. be utilized by the MEF for carrying out all necessary
remedial measures to restore the soil, water sources and
(v) Sections 3 and 5 of the Environment (Protection) the environment in general of the affected area to its
Act, 1986, apart from other provisions of Water and former state.
Air Acts, empower the Government to make all such
directions and take all such measures as are neces- 2. On account of their continuous, persistent and insolent
sary or expedient for protecting and promoting the violations of law, their attempts to conceal the sludge,
‘environment’, which expression has been defined their discharge of toxic effluents from the Sulfuric Acid
in very wide and expansive terms in Section 2(a) of Plant which was allowed to flow through the sludge, and
the Environment (Protection) Act. This power in- their non-implementation of the orders of this Court - all
cludes the power to prohibit an activity, close an of which are fully borne out by the Expert Committee’s
industry, director and/or carry out remedial meas- reports and the findings recorded hereinabove -
ures, and wherever necessary impose the cost of Respondents 4 to 8 have earned the dubious distinction
remedial measures upon the offending industry. The of being characterized as “rogue industries”. They have
principle “Polluter Pays” has gained almost univer- inflicted untold misery upon the poor, unsuspecting
sal recognition, apart from the fact that it is stated villagers, de-spoiling their land, their water sources and
in absolute terms in Oleum Gas Leak case. The their entire environment - all in pursuance of their private
law declared in the said decision is the law govern- profit. They have forfeited all claims for any
ing this case. consideration by this Court. Accordingly, we herewith
order the closure of all the plants and factories of
Respondents 4 to 8 located in Bichhri village. The RPCB
Directions is directed to sell all the factories/units/plants of the said
respondents forthwith. So far as the Sulfuric Acid Plant
70. Accordingly, the following directions are made: is concerned, it will be closed at the end of one week
from today, within which period Respondent 4 shall wind
1. The Central Government shall determine the amount down its operations so as to avoid risk of any untoward
required for carrying out the remedial measures including consequences, as asserted by respondent 4 in Writ
the removal of sludge lying in and around the complex Petition (C) No.76 of 1994. It is the responsibility of
of Respondents 4 to 8, in the area affected in Village Respondent 4 to take necessary steps in this behalf. The
Bichhri and other adjacent villages, on account of the RPCB shall seal this unit too at the end of one week
production of ‘H’ and the discharges from the Sulfuric from today. The reopening of these plants shall depend
Acid Plant of Respondents 4 to 8. Chapters VI and VII upon their compliance with the directions made and
in NEERI report (submitted in 1994) shall be deemed to obtaining of all requisite permissions and consents from
be the show-cause notice issued by the Central the relevant authorities. Respondents 4 to 8 can apply
Government proposing the determination of the said for directions in this behalf after such compliance.
amount. Within six weeks from this day, Respondents 4
to 8 shall submit their explanation, along with such 3. So far as the claim for damages for the loss suffered
material as they think appropriate in support of their case, by the villagers in the affected area is concerned, it is
to the Secretary, Ministry of Environment and Forests, open to them or any organization on their behalf to
Government of India, (MEF). The Secretary shall institute suits in the appropriate civil court. If they file
thereupon determine the amount in consultation with the the suit or suits in forma pauperis, the State of Rajasthan
experts of his Ministry within six weeks of the submission shall not oppose their applications for leave to sue in
of the explanation by the said respondents. The orders forma pauperis.
passed by the Secretary, (MEF) shall be communicated
to Respondents 4 to 8 - and all concerned - and shall also 4. The Central Government shall consider whether it
be placed before this Court. Subject to the orders, if would not be appropriate, in the light of the experience
any, passed by this Court, the said amount shall represent gained, that chemical industries are treated as a category
the amount which Respondents 4 to 8 are liable to pay to apart. Since the chemical industries are the main culprits
416
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA & OTHERS
in the matter of polluting the environment, there is every advisability of strengthening the environment protection
need for scrutinising their establishment and functioning machinery both at the Centre and the States and provide
more rigorously. No distinction should be made in this them more teeth. The heads of several units and agencies
behalf as between a large-scale industry and a small-scale should be made personally accountable for any lapses
industry or for that matter between a large-scale industry and/or negligence on the part of their units and agencies.
and a medium-scale industry. All chemical industries, The idea of an environmental audit by specialist bodies
whether big or small, should be allowed to be established created on a permanent basis with power to inspect, check
only after taking into consideration all the environmental and take necessary action not only against erring
aspects and their functioning should be monitored closely industries but also against erring officers may be
to ensure that they do not pollute the environment around considered. The idea of an environmental audit
them. It appears that most of these industries are water- conducted periodically and certified annually, by
intensive industries. If so, the advisability of allowing specialists in the field, duly recognized, can also be
the establishment of these industries in arid areas may considered. The ultimate idea is to integrate and balance
also require examination. Even the existing chemical the concern for environment with the need for
industries may be subjected to such a study and if it is industrialization and technological progress.
found on such scrutiny that it is necessary to take any
steps in the interests of environment, appropriate 71. Respondents 4 to 8 shall pay a sum of Rupees fifty
directions in that behalf may be issued under Sections 3 thousand by way of costs to the petitioner which had to
and 5 of the Environment Act. The Central Government fight this litigation over a period of over six years with
shall ensure that the directions given by it are its own means. Voluntary bodies, like the petitioner,
implemented forthwith. deserve encouragement wherever their actions are found
to be in furtherance of public interest. The said sum
5. The Central Government and the RPCB shall file shall be deposited in this Court within two weeks from
quarterly reports before this Court with respect to the today. It shall be paid over to the petitioner.
progress in the implementation of Directions 1 to 4
aforesaid. 72. Writ Petition (C) No.967 of 1989 is allowed with
the above directions with costs as specified hereinabove.
6. The suggestion for establishment of environment courts
is a commendable one. The experience shows that the Writ Petition (C) No.76 of 1994
prosecutions launched in ordinary criminal courts under
the provisions of the Water Act, Air Act and Environment 73. In view of the decision in Writ Petition (C) No.967
Act never reach their conclusion either because of the of 1989, the writ petition is dismissed.
workload in those courts or because there is no proper
appreciation of the significance of the environment matters 74. No costs.
on the part of those in charge of conducting of those cases.
Moreover, any orders passed by the authorities under Water
and Air Acts and the Environment Act are immediately Writ Petition (C) No.94 of 1990
questioned by the industries in courts. Those proceedings
take years and years to reach conclusion. Very often, 75. In view of the decision in Writ Petition (C) No.967
interim orders are granted meanwhile which effectively of 1989, no separate orders are necessary in this petition.
disable the authorities from ensuring the implementation The writ petition is accordingly dismissed.
of their orders. All this points to the need for creating
environment courts which alone should be empowered to 76. No costs.
deal with all matters, civil and criminal, relating to
environment. These courts should be manned by legally Writ Petition (C) No.824 of 1993
trained persons/judicial officers and should be allowed to
adopt summary procedures. This issue, no doubt, requires 77. In view of the decision in Writ Petition (C) No.967
to be studied and examined in depth from all angles before of 1989, no separate orders are necessary in this petition.
taking any action. The writ petition is accordingly dismissed.
7. The Central Government may also consider the 78. No costs.
417
Section 7
Riparian Right to Water
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
420
AIR 1988 SUPREME COURT 1115
E.S. VENKATARAMIAH AND K.N. SINGH. J.J.
Writ Petn. No. 3727 of 1985.D/- 12-1-1988
M.C. MEHTA — PETITIONER
v.
UNION OF INDIA AND OTHERS — RESPONDENTS
(A) Constitution of India, Arts. 32, 226 - Public of failure of authorities to obey the statutory duties for
interest litigation - Pollution of river Ganga - Public several years the water in the river Ganga at Kanpur has
nuisance - Writ petition by person who is not a become so much polluted that it can no longer be used
riparian owner but is interested in protecting lives of by the people either for drinking or for bathing. The
people using water of river Ganga - Maintainable as Nagar Mahapalika of Kanpur has to bear the major
public interest litigation. (Civil P.C. (1908), O. 39 R. responsibility for the pollution of the river near Kanpur
1) city.
In common law the Municipal Corporation can be (Paras 13, 16)
restrained by an injunction in an action brought by a
riparian owner who has suffered on account of the (B) Constitution of India, Arts. 32, 226 - Pollution
pollution of the water in a river caused by the Corporation of river Ganga at Kanpur - Prevention and control of
by discharging into the river insufficiently treated sewage - Certain directions issued by Supreme Court -
from discharging such sewage into the river. 1953 (Pollution of water - Prevention and control of) - U.P.
Chancery 149, Rel. on. Nagar Mahapalika Adhiniyam (1959), Ss. 114, 251,
396, 405 and 407) - (U.P. Municipalities Act (11 of
In the instant case, the petitioner had filed writ petition 1916), Ss. 245, 275) -(Water (Prevention and Control
for prevention of nuisance caused by the pollution of the of Pollution) Act (6 of 1974), Ss. 2(g), 2(k), 19) -
river Ganga. No doubt, the petitioner is not a riparian Environment (Protection) Act (29 of 1986), S.7).
owner. He is a person interested in protecting the lives
of the people who make use of the water flowing in the In order to control and prevent the pollution of water in
river Ganga and his right to maintain the petition cannot the river Ganga at Kanpur the Supreme Court issued
be disputed. The nuisance caused by the pollution of the certain directions for compliance by the Kanpur
river Ganga is a public nuisance, which is widespread in Municipal Corporation and concerned authorities.
range and indiscriminate in its effect and it would not be
reasonable to expect any particular person to take 1. It is seen that Kanpur Mpl. Corporation is taking
proceedings to stop it as distinct from the community at certain steps but not with sufficient speed. It is noticed
large. The petition was therefore, entertained as a Public that the Mpl. Corporation has not submitted its proposals
Interest Litigation. The petitioner was entitled to move for sewage treatment works to the State board constituted
the Supreme Court in order to enforce the statutory under the Water Act. The Mpl Corporation should submit
provisions which impose duties on the municipal its proposals to the State Board within six months from
authorities and the Boards constituted under the Water 12-1-1988.
Act.
2. Appropriate steps be taken to prevent pollution of
It was observed that although Parliament and the State water on account of waste accumulated at the dairies.
Legislature have enacted many laws imposing duties on
the Central and State Boards and the Municipalities for 3. Should take immediate steps to increase the size of
prevention and control of pollution of water, may of those the sewers in labour colonies so that the sewage may be
provisions have just remained on paper without any carried smoothly through the sewerage system. Wherever
adequate action being taken pursuant thereto. On account sewerage line is not yet constructed steps should be taken
421
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
to lay it. Tapash Ray and Mr. B.R.L. Ayenger Sr. Advocates, Mr.
R.P. Sing; Mr. R.P. Kapur; Mr. Ravinder Narain; Mr. S.
4. Immediate action should also be taken by the Kanpur Sukumaran; Mr. C. B. Singh; Mr. S.K. Dhingra; Mr. P.K.
Nagar Mahapalika to construct sufficient number of Jain; Mr. D.N. Goburdhan; Mr. Arvind Kumar; Ms.
public latrines and urinals for free use of the poor people Laxmi Arvind; Mr, Vineet Kumar; Mr. Deepak K. Thakur;
in order to prevent defecation by them on open land. Mr. T.V.S.N. Chari; Mr. Vrinda Grover; Mr. Badri Nath;
Mr. Rakesh Khanna; Mr. R.P. Sing; Mr. Mukul Mudgal;
5. Since the problem of pollution of the water in the Mr. A.K. Ghose; Mr. M.M. Gangedeb; Mr. Probir Mitra;
river Ganga has become very acute the High Courts Mr. Sushil Kumar Jain; Mr. Suryakant; Mr. Pappy T.
should not ordinarily grant orders of stay of criminal Mathews; Mrs. Mamta Kachhawaha; Mrs. Shobha
proceedings in cases under S.482, Cr. P.C., and even if Dikship; Mr. G.S. Misra; Mr. S.R. Srivastava; Mr. Parijat
such an order of stay is made in any extraordinary case Sinha; Mr. R. Mohan; Ms. Bina Gupta; Mr. Ranjit Kumar;
the High Courts should dispose of the case within a short Mr. Krishna Kumar; Mr. R.C. Verma; Mr. Arun Minosha;
period, say about two months, from the date of the Mr. Shri Narain; Mr. E.C. Agarwala; Mr. S.R. Setia; Mr.
institution of such case. H.K. Puri; Mr. T.S. Rana; Mr. Pramod Swarup; Mr. Ashok
Grover; Mr. S. Markandeya; Mr. Swarup; Ms. Lalita
6. Steps shall be taken by the Kanpur Nagar Mahapalika Kohli; Mr. K.C. Dua; Mr. Rajbirbal; Mr. R.A. Gupta and
and the Police authorities to ensure that dead bodies or Ms. A. Subhashini, Advocates with them for
half burnt bodies are not thrown into the river Ganga. Respondents.
7. Licences should not be issued to establish new 1. VENKATARAMIAH, J.: -By our judgement dated
industries unless adequate provision has been made for September 22, 1987 in M.C. Mehta v. Union of India,
the treatment of trade effluents flowing out of the (1987) 4 SCC 463: (AIR 1988 SC 1037) we issued certain
factories. Immediate action should be taken against the directions with regard to the industries in which the
existing industries if they are found responsible for business of tanning was being carried on at Jajmau near
pollution of water. Kanpur on the banks of the river Ganga. On that occasion
we directed that the case in respect of the municipal
8. Central Government should direct all educational bodies and the industries which were responsible for the
institutions to include the subject of national environment pollution of the water in the river Ganga would be taken
in text-books. up for consideration on the next date of hearing.
Accordingly, we took up for consideration first the case
9. To make people aware of the importance of cleanliness against the municipal bodies. Since it was found that
and hazards of pollution, “Keep city/village clean” weeks Kanpur was one of the biggest cities on the banks of the
should be observed. river Ganga, we took up for consideration the case in
respect of the Kanpur Nagar Mahapalika.
10. The directions given to the Kanpur Mpl. Corporation
applies mutatis mutandis to other Mpl. Corporations and 2. The Kanpur Nagar Mahapalika is established under
Municipalities. the provisions of the Uttar Pradesh Nagar Mahapalika
Adhiniyam, 1959 (hereinafter referred to as ‘the
(Paras 17 to 26) Adhiniyam’). Sub-section (3) of section 1 of the
Adhiniyam, which is to be found in its 1st Chapter,
(C) Criminal P.C. (2 of 1974), S. 482 - Prosecution of provides that the 1st Chapter of the Adhiniyam shall come
Industries for pollution of river Ganga - Stay by High into operation at once and the remaining provisions in
Courts - Should not ordinarily be granted - If granted, relation to a city shall come into operation from such
matter should be disposed of within short period, say date as the State Government may by notification in the
about 2 months official Gazette appoint in that behalf and different dates
may be appointed for different provisions. In exercise
(Para 21) of the powers conferred by the said sub-section and in
continuation of a notification dated September 18, 1959
Cases Referred: Chronological Paras bringing into operation sections 579 and 580 of the
Adhiniyam, the Government of Uttar Pradesh was
AIR 1988 SC 1037: (1987) SCC 463 1, 4 (1953) Ch. pleased to issue a notification dated January 18, 1960
149: (1953) 2 WLR 58: (1953) 1 All ER 179 (Rel on). appointing the 1st day of February, 1960 as the date on
Pride of Derby and Derbyshire Angling Association v. which the remaining provisions of the Adhiniyam and
British Celanese Ltd. the three Schedules, appended thereto, would come into
operation in relation to the cities of Kanpur, Allahabad,
Mr. B. Datta, Addl. Solicitor General; Mr. R.K. Jain; Mr. Varanasi, Agra and Lucknow, as constituted under section
Vinod Bobde; Mr. R.N. Trivedi; Mr. K. N. Bhat; Mr. 3 of the Adhiniyam. The duties of the Mahapalika and
422
M.C. MEHTA V UNION OF INDIA
Mahapalika authorities are set out in Chapter V of the (1) and in any premises, wherever situated, in which there
Adhiniyam; Clauses (iii), (vii) and (viii) of section 114 is a water-closet or privy connected with a Mahapalika
of the Adhiniyam, which incorporates the obligatory drain, it shall not be lawful, except with the written
duties of the Mahapalika, read as follows: permission of the Mukhya Nagar Adhikari, for any person
who is not employed by or on behalf of the Mukhya Nagar
“114, Obligatory duties of the Mahapalika - It shall be Adhikari to discharge any of the duties of scavengers.
incumbent on the Mahapalika to make reasonable and
adequate provision, by any means or measures which it ..........
is lawfully competent to it to use or to take, for each of
the following matters, namely’ - 396. Removal of carcasses of dead animals - (1) It shall
be the duty of the Mukhya Nagar Adhikari to provide for
.......... the removal of the carcasses of all animals dying within
the City.
(iii) the collection and removal of sewage, offensive
matter and rubbish and treatment and disposal thereof (2) The occupier of any premises in or upon which any
including establishing and maintaining farm or factory; animal shall die or in or upon which the carcass of any
animal shall be found, and the person having the charge
.......... of any animal which dies in the street or in any open
place, shall, within three hours after the death of such
(vii) the management and maintenance of all animal or, if the death occurs at night within three hours
Mahapalika Waterworks and the construction or after sunrise, report the death of such animal at the nearest
acquisition of new works necessary for a sufficient supply office of the Mahapalika health department.
of water for public and private purposes,
(3) For every carcass removed by Mahapalika agency,
(viii) guarding from pollution water used for human whether from any private premises or from public street
consumption and preventing polluted water from being or place, a fee for the removal of such amount as shall be
so used; fixed by the Mukhya Nagar Adhikari shall be paid by
the owner of the animal, or, if the owner is not known,
.......... by the occupier of the premises in or upon which, or by
the person in whose charge, the said animal died.
3. Sections 251, 388, 396, 397, 398, 405 and 407 of the
Adhiniyam read as follows: 397. Prohibition of cultivation, use of manure or
irrigation injurious to health - if the Director of Medical
“251. Provision of means for disposal of sewage - The and Health Services or the Civil Surgeon or the Nagar
Mukhya Nagar Adhikari may, for the purpose of Swasthya Adhikari certifies that the cultivation of any
receiving, treating, storing, disinfecting, distributing or description of crops or the use of any kind of manure or
otherwise disposing of sewage, construct any work within the irrigation of land in any specified manner -
or without the City or purchase or take on lease any land,
building, engine, material or apparatus either within or (a) in a place within the limits of a City is injurious or
without the City or enter into any arrangement with any facilitates practices which are injurious to the health
person for any period not exceeding twenty years for the of persons dwelling in the neighbourhood, or
removal or disposal of sewage within or without the City.
(b) in a place within or beyond the limits of a City is
.......... likely to contaminate the water-supply of such City
or otherwise render it unfit for drinking purposes,
388. Provision may be made by Mukhya Nagar Adhikari
for collection, etc., or excrementitious and polluted matter the Mukhya Nagar Adhikari may by public notice
- (1) The Mukhya Nagar Adhikari may give public notice prohibit the cultivation of such crop, the use of such
of his intention to provide, in such portion of the City as manure or the use of the method of irrigation so reported
he may specify, for the collection, removal and disposal to be injurious, or impose such conditions with respect
by Mahapalika agency, of all excrementitious and thereto as may prevent the injury or contamination:
polluted matter from privies, urinals, and cess-pools, and
thereupon it shall be the duty of the Mukhya Nagar Provided that when, on any land in respect of which such
Adhikari to take measures for the daily collection, notice is issued, the act prohibited has been practiced in
removal and disposal of such matter from all premises the ordinary course of husbandry for the five successive
situated in such portion of the City. years next preceding the date of prohibition,
compensation shall be paid from the Mahapalika Fund
(2) In any such portion as is mentioned in sub-section to all persons interested therein for damage caused to
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
them by such prohibition. of water pollution for conferring on and assigning to such
Boards powers and functions relating thereto and for
398. Power to require owners to clear away noxious matters connected therewith. In the Water Act the
vegetation - The Mukhya Nagar Adhikari may, by notice, expressions ‘pollution’, ‘sewage effluent’, ‘stream, and
require the owner or occupier of any land to clear away ‘trade effluent’ are defined as follows:
and remove any vegetation or undergrowth which may
be injurious to health or offensive to the neighbourhood. “2. Definitions - In this Act, unless the context otherwise
requires-
..........
..........
405. Power to require removal of nuisance arising from
tanks, etc. - The Mukhya Nagar Adhikari may by notice (e) ‘Pollution’ means such contamination of water or
require the owner or occupier of any land or building to such alteration of the physical, chemical or biologi-
cleanse, repair, cover, fill up or drain off a private well, cal properties of water or such discharge of any sew-
tank, reservoir, pool, depression or excavation therein age or trade effluent or of any other liquid, gaseous
which may appear to the Mukhya Nagar Adhikari to be or solid substance into water (whether directly or
injurious to health or offensive to the neighbourhood: indirectly as may or is likely to, create a nuisance
or render such water harmful or injurious to public
Provided that the owner or occupier may require the health or safety, or to domestic, commercial, indus-
Mukhya Nagar Adhikari to acquire at the expense of the trial, agricultural or other legitimate uses, or to the
Mahapalika or otherwise provide, any land or rights in life and health of animals or plants or of aquatic
land necessary for the purpose of effecting drainage organisms;
ordered under this section.
..........
407. Any place may at any time be inspected for purpose
of preventing spread of dangerous disease - The Mukhya (g) ‘sewage effluent’ means effluent from any sewerage
Nagar Adhikari may at any time, by day or by night, system or sewage disposal works and includes sullage
without notice or after giving such notice of his intention from open drains;
as shall in the circumstances, appear to him to be
reasonable, inspect any place in which any dangerous (gg) ‘sewer’ means any conduit pipe or channel open or
disease is reported or suspected to exist, and take such closed, carrying sewage or trade effluent;
measures as he shall think fit to prevent the spread of the
said disease beyond such place.” ..........
4. The above provisions deal with the specific duties of (j) ‘stream’ includes-
the Nagar Mahapalika or the Mukhya Nagar Adhikari
appointed under the river Ganga with regard to the (i) river;
disposal of sewage and protection of the environment in
or around the City to which the river Ganga applies. (ii) water course (whether flowing or for the time be-
There are as most similar provisions in sections 7, 189, ing dry;
191 and other provisions of the Uttar Pradesh
Municipalities Act, 1916 which applies to the smaller (iii) inland water (whether natural or artificial);
municipal bodies. The Uttar Pradesh Water Supply and
Sewerage Act, 1975 imposes statutory duties on the (iv) sub-terranean waters;
authorities mentioned therein regarding the provision of
water supply to the cities and towns and construction of (v) sea or tidal waters to such extent or, as the case may
sewerage systems in them. The perusal of these be, to such point as the State may, by notification in
provisions in the laws governing the local bodies shows the Official Gazette, specify in this behalf;
that the Nagar Mahapalikas and the Municipal Boards
are primarily responsible for the maintenance of (k) ‘trade effluent’ includes any liquid, gaseous or solid
cleanliness in the areas under their jurisdiction and the substance which is discharged from any premises used
protection of their environment. We have in the for carrying on any trade or industry, other than domestic
judgement delivered by us on September 22, 1987 sewage.”
(reported in AIR 1988 SC 1037), briefly referred to the
Water (Prevention and Control of Pollution) Act, 1974 5. Sections 3 and 4 of the Water Act provide for the
(Act No. 6 of 1974) (hereinafter referred to as ‘the Water constitution of the Central Board and State Boards
Act’) in which provisions have been made for the respectively. A State Board has been constituted under
establishment of the Boards for the prevention and control section 4 of the Water Act in the State of Uttar Pradesh.
424
M.C. MEHTA V UNION OF INDIA
Section 16 of the Water Act sets out the functions of the that the water in any stream or well is likely to be polluted
Central Board and section 17 of the Water Act lays down by reason of the disposal of any matter therein or of any
the functions of the State Board. The functions of the likely disposal of any matter therein, or otherwise, the
Central Board are primarily advisory and supervisory in Board may under section 33 of the Water Act make an
character. The Central Board is also required to advise application to a court not inferior to that of a Resident
the Central Government on any matter concerning the Magistrate or a Magistrate of the first class, for restraining
prevention and control of water pollution and to co- the person who is likely to cause such pollution from so
ordinate the activities of the State Boards. The Central causing.
Board is also required to provide technical assistance any
guidance to the State Boards, carry out and sponsor The Environment (Protection) Act, 1986, which has also
investigations and research relating to problems of water been referred to in our earlier judgement, also contains
pollution and prevention, control or abatement of water certain provisions relating to the control, prevention and
pollution. The functions of the State Board are more abatement of pollution of water and one significant
comprehensive. In addition to advising the State provision in that Act is what is contained in section 17
Government on any matter concerning the prevention, thereof, which provides that where an offence under that
control or abatement of water pollution, the State Board Act is committed by any Department of Government,
is required among other things (i) to plan a comprehensive the Head of that Department shall be deemed to be guilty
programme for the prevention, control or abatement of of the offence and is liable to be punished.
pollution of streams and wells in the State and to secure
the execution thereof (ii) to collect and disseminate 7. It is unfortunate that although Parliament and the State
information relating to water pollution and the prevention, Legislature have enacted the aforesaid laws imposing
control or abatement thereof; (iii) to encourage, conduct duties on the Central and State Boards and the
and participate in investigations and research relating to municipalities for prevention and control of pollution of
problems of water pollution and prevention, control or water, many of those provisions have just remained on
abatement of water pollution; (iv) to inspect sewage or paper without any adequate action being taken pursuant
trade effluents, works and plants for the treatment of thereto. After the above petition was filed and notice
sewage and trade effluents; (v) to review plans, was filed and notice was sent to the Uttar Pradesh State
specifications or other data relating to plants set up for Board constituted under the Water Act, an affidavit has
the treatment of water, works for the purification thereof been filed before this Court by Dr. G.N. Misra, Scientific
and the system for the disposal of sewage or trade Officer of the U.P. Pollution Control Board setting out
effluents or in connection with the grant of any consent the information which the Board was able to collect
as required by the Water Act; (vi) to evolve economical regarding the measures taken by the several local bodies
and reliable methods of treatment of sewage and trade and also by the U.P. Pollution Control Board in order to
effluents, having regard to the peculiar conditions of soils, prevent the pollution of the water flowing in the river
climate and water resources of different regions and more Ganga. A copy of the report relating to the inspection
especially the prevailing flow characteristics of water in made at Kanpur on 23-11-87/24-11-87 by Shri Tanzar
streams and wells which render it impossible to attain 1988 S.C./17 VI G-11 Ullah Khan, Assistant
even the minimum degree of dilution, and (vii) to lay Environmental Engineer and Shri A.K. Tiwari, Junior
down standards of treatment of sewage and trade effluents Engineer enclosed to the counter affidavit as Exhibit K-
to be discharged into any particular stream taking into 5 reads thus:
account the minimum fair weather dilution available in
that stream and the tolerance limits of pollution The inspection made on 23.11.87/24.11.87 along with
permissible in the water of the stream, after the discharge Sri A.K. Tiwari, Junior Engineer. Following are the facts
of such effluents. The State Board has been given certain observed at the time of inspection.
executive powers to implement the provisions of the
Water Act. Sections 20, 21 and 23 of the Water Act confer 1. Kanpur town is situated on the southern bank of river
power on the State Board to obtain information necessary Ganges.
for the implementation of the provisions of the Water
Act, to take samples of effluents and to analyse them 2. The present population of the town is approximately
and to follow the procedure prescribed in connection 20 lacs.
therewith and the power of entry and inspection for the
purpose of enforcing the provisions of the Water Act. 3. The city is covered with piped water supply.
Section 24 of the Water Act prohibits the use of stream
or well for disposal of polluting matters etc. contrary to 4. The city has developed between river Ganges on the
the provisions incorporated in that section. Section 32 north side and river Pandu on the south side G.T. Road
of the Water Act confers the power on the State Board to divides the city into two halves.
take a certain emergency measures in case of pollution
of stream or well. Where it is apprehended by a Board In the north side most of the area is covered by sewerage
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
system and the sullage/sewage is discharged without discharges 580.17 million litres a day of sewage water
treatment into river Ganges through 17 nalas including into the river Ganga. Para 4 of the affidavit filed by Shri
sewerage by-pass channel at Jajmau. Jai Shanker Tewari, Executive Engineer of Kanpur Nagar
Mahapalika reads thus:
In the south side there is no sewerage system and the
sewage/sullage are discharged without treatment into “4. That the pollution in river Ganga from Kanpur is
river Pandu through 5 nalas. River Pandu joins river occurring because of following reasons:
Ganges near Fatehpur (Sketch enclosed.)
(i) About 16 nalas collecting sullage water, sewage,
5. The Kanpur Nagar Mahapalika has not yet submitted textile waste, power plant waste and tannery efflu-
any proposal of sewage treatment works to the Board. ents used to be discharged without any treatment
into the river. However some Nalas have been
6. Mr. Ikramur Rahman, A.E. Nagar Mahapalika told trapped now.
the Kanpur town is covered under Ganga Action Plan
and following are the proposals- (ii) The dairies located in the city have a cattle popula-
tion of about 80,000. The dung, fodder waste and
(A) U.P. Jal Nigam. other refuse from this cattle population is quantita-
tively more than the sullage from the city of human
(1) Re-modelling of sewage pumping station at Jajmau population of over 20 lakhs. All this finds its way
and improvement to sewage farm. into the sewerage system and the nalas in the rainy
season. It has also totally choked many branches
(2) Nala Tapping. of sewers and trunk sewers resulting in the over-
flow of the system.
(3) Sewage Treatment Plant.
(iii) The night soil is collected from the unsewered ar-
(B) Kanpur Jal Sansthan eas of the city and thrown into the nalas.
(1) Cleaning of Trunk and main sewers. (vi) There are more than 80 tanneries in Jajmau whose
effluent used to be directly discharged into the river.
(C) Integrated Environmental and sanitary Engineer
project is being executed under the Dutch Assistance in (v) The total water supply in Kanpur is about 55 mil-
Jajmau area. lion gallons per day. After use major part of it goes
down the Jajmau sewage pumping station and a part
1. Crash Programme (is to remove deficiencies in the of it is being supplied to sewage farms after dilut-
existing sanitary facilities) ing it with raw Ganges water and the remaining part
is discharged into the river.
2. Laying of Industrial sewer.
(vi) Dhobi Ghats
3. U.A.S.B. Sewage Treatment Plant.
(vii) Defecation by economically weaker sections.”
sd/- sd/-
10. The affidavit further states that the U.P. Jal Nigam,
(A.K. TIWARI) (TANZAR ULLA KHAN) the U.P. Water Pollution Control board, the National
Environmental Engineering Research Institute, the
J.E. ASSTT. ENVIRONMENTAL ENGINEER” Kanpur Nagar Mahapalika, the Kanpur Development
Authority and the Kanpur Jal Sansthan have started taking
action to minimise the pollution of the river Ganga. It is
also stated therein that the financial assistance is being
8. Appendix A/1 to ‘An Action Plan for Prevention of provided by the Central Ganga Authority through Ganga
Pollution of the Ganga gives the following particulars Project Directorate. State Government, the World Bank,
relating to the quantity of sewerage generated in the City the Dutch Government etc. for implementing the said
of Kanpur which is discharged into the river Ganga and measures. The said affidavit gives information about the
other relevant matters: several works undertaken at Kanpur for minimising the
pollution of the river Ganga. It also states that Rs. 493.63
9. It is thus seen that 274.50 million litres a day of sewage lacs had been spent on those works between the years
water is being discharged into the river Ganga from the 1985 and 1987 and that the total allocation of funds by
city of Kanpur, which is the highest in the State of Uttar the Central Ganga Authority for Kanpur is Rs. 3694.94
Pradesh and next only to the city of Calcutta which lacs and that up to the end of the current financial year it
426
M.C. MEHTA V UNION OF INDIA
is proposed to spend Rs. 785.58 lacs (1985 to 1987-88) for drinking, fishing and bathing purposes.
towards various schemes to be completed under Ganga
Action Plan. Table II further shows that Total Coliform and Fecal
Coliform bacteria are always found very high. This is
KANPUR due to disposal or large quantity of untreated municipal
waste into river Ganga. These high values of bacteria
Population in 1981 Estimated water supply in indicate that water is not fit for drinking, bathing and
1981 Estimated sewage fishing purpose.
generated Treatment
To improve quality of water in Ganga, all nallahs should
(70% of the water supply to the city) be trapped immediately and raw water should be treated
16.39 lacs 392.14 million litres a day conventionally at water works and disinfected by
274.50 million litres a day Nil chlorination.”
(underlining by us)
The affidavit points out that in Kanpur City sewer 12. In the concluding part of the said Progress Report it
cleaning has never been done systematically and in a is stated thus:
planned way except that some sewers were cleaned by
the U.P. Jal Nigam around 1970. The main reasons for “The Ganga is grossly polluted at Kanpur. All hullahs
mal-functioning and choking of the city sewerage, are discharging the polluted waste water into river Ganga.
according to the affidavit, are (i) throwing or discharging But Jajmau by-pass channel, Sismau, Muir Mill, Golf
of solids, clothes, plastics, metals etc. into the sewerage Club and Gupta Ghat nullahs are discharging huge
system; (ii) throwing of cow dung from dairies which quantities of polluted waste water. To improve the water
are located in every part of the city which consists of quality of Ganga all major nullahs should be diverted
about 80,000 cattle; (iii) laying of under-sized sewers and treated. Combined treatment should be provided for
specially in labour colonies; (iv) throwing of solid wastes Jamau tanneries. Effluent treatment plants should be
and malba from construction of buildings into sewers installed by all major polluting industries.”
through manholes; (v) non-availability of mechanical
equipment for sewer cleaning works; and (vi) shortage 13. It is needless to say that in the tropical developing
of funds for proper maintenance. It is asserted that the countries a large amount of misery, sickness and death
discharge of untreated effluents into the river Ganga will due to infectious diseases arises out of water supplies.
be stopped up to 80% by March, 1988. In Lall’s Commentaries on Water and Air Pollution Laws
(2nd Edition) at pages 331 and 333 is observed thus:
11. Shri M.C. Mehta, the petitioner herein, drew out
attention to the Progress of the Ganga Action Plan (July, “In the tropics, we cannot safely take such a limited view.
1986 -January, 1987) prepared by the Industrial Such water-borne diseases as malaria, schistosomiasis,
Toxicology Research Centre, Council of Scientific & guinea worm and yellow fever are either terrible scourges
Industrial Research. At page 20 of the said report the of, or threats to, many tropical populations. The hazards
details of the analysis of the Ganga water samples from bad water are thus much greater. Poverty is much
collected during August, 1986 to January, 1987 from more serious for many tropical areas; in the rural areas -
Uttar Pradesh region are furnished. That report shows where most people live - and around the edges of the
that the pollution of the water in the river Ganga is of the cities, which are the fastest-growing communities, most
highest degree at Kanpur. The Ganga water samples people cannot afford a conventionally good water supply
taken at Kanpur shows that the water in the river Ganga at present, and the choice in the short run may be between
at Kanpur consisted of 29.200 units (mg/ml) of iron in doing nothing and providing somewhat improved supply.
the month of August, 1986 when the ISI limit for river If an ideal water system is not possible, there are options
water is 0.3 and 0.900 (mg/ml) of manganese whereas as to what needs should be met by the partial
the WHO limit of manganese for drinking water is 0.05. improvements. To make the right decisions we need
The Progress Report for the period February, 1987 - June, again the broad picture of water-related diseases. So,
1987 of Microlevel Intensive Monitoring of Ganga under because of these two tropical characteristics - warmth
Ganga Action Plan describes the samples of the water and poverty - a wider view than in temperate lands is
taken from the river Ganga at Kanpur thus:- necessary. (P.311)
“B.O.D. (Bio Oxygen Demand) values are found to be ..........................................................................................................
higher than prescribed values of I.S.I. C.O.D. (Chemical
Oxygen Demand) values are also found to be higher. Water-borne diseases - The classical water-borne diseases
These values clearly indicate that river water is not fit are due to highly infective organisms where only rather
427
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
few are needed to infect someone, relative to the levels communities were scattered over large areas of land, the
of pollution that readily occur. The two chief ones have disposal of human wastes created no problems. People
a high mortality if untreated and are diseases which a could defecate in areas surrounding villages and other
community is very anxious to escape: typhoid and habitations and leave it to nature to dispose of the waste
cholera. Both are relatively fragile organisms whose sole by assimilation in the surrounding land and air. But as
reservoir is man. communities became more concentrated and villages and
towns grew, such a mode of disposal by natural agencies
These two diseases occur most dramatically as the came to be replaced by organised disposal, though again
‘common source out-break’ where a community water through the agency of natural land and soil columns. The
supply gets contaminated by faeces from a person collection of human excreta and its disposal in earthen
suffering from, or carrying, one of the infections. Many trenches was resorted to by many towns and adopted the
people drink the water and a number of these fall ill from basket privy system.
the infection at about the same time.
The introduction of a system of water-borne sewage
Typhoid is the most cosmopolitan of the classical water- created new problems in the disposal of human wastes,
borne infections. In man it produces a severe high fever as now along with the earlier problem of getting rid of
with generated systemic, more than intestinal, symptoms. solid wastes’ i.e., human excreta, the problem of the
The bacteria are ingested and very few are sufficient to disposal of the water employed for the removal of human
infect. The typhoid patient is usually too ill to go out wastes had also to be faced. This was the origin of the
polluting the water and is not infective prior to falling problem of sewage disposal. At first, the natural instinct
sick. However, a small proportion of those who recover was to channelize the sewage - the soiled water - to natural
clinically continue to pass typhoid bacteria for months streams and rivers. For a time this mode of disposal was
or years; these carriers are the source of water-borne even considered quite efficacious. Such methods did not
infections. Gallstones predispose to the carrier state as create difficulties as sewage discharges were small as
the bacteria persist in the inflamed gall bladder. In the compared to the stream flow. But with the increased
tropics, lesions of Schistosoma haematobium in the discharge of progressively large quantities of sewage,
bladder also act as nide of infection, producing urinary polluted streams became a serious menace to public
typhoid carriers, whilst rectal schistosomiasis combined health.
with typhoid leads to persistent severe fever lasting many
months. Typhoid bacteria survive well in water but do NATURE OF THE PROBLEM
not multiply there.
The introduction of modern water carriage systems
Cholera is in some ways similar to typhoid, but its transferred the sewage disposal from the streets and the
causative bacteria are more fragile and the clinical course surroundings of townships to neighbouring streams and
is extremely dramatic. In classical cholera the onset of rivers. This was the beginning of the problem of water
diarrhoea is sudden and its volume immense so that the pollution. It is ironic that man, from the earliest times,
untreated victim has a high probability of dying from has tended to dispose of his wastes in the very streams
dehydration within 24 hours or little more. and rivers from which most of his drinking water is
drawn. Until quite recently this was not much of a
Several other infections are water borne but are less problem, but with rapid urbanisation and
important than typhoid and cholera. Leptospirosis, due industrialisation, the problem of the pollution of natural
to a spirochaete, has its reservoir in wild rodents which waters is reaching alarming proportions.
pollute the water. Leptospires can penetrate the skin as
well as being ingested. They produce jaundice and fever, The most disturbing feature of this mode of disposal is
called ‘well’s disease. Which is severe but not common.” that those who cause water pollution are seldom the
people who suffer from it. Cities and industries discharge
14. The amount of suffering which the members of the their untreated or only partially treated sewage and
public are likely to undergo by using highly polluted industrial waste waters into neighbouring streams and
water can be easily gathered from the above extract. thereby remove waste matter from their own
neighbourhood. But in doing so, they create intense
15. In the book entitled ‘Water Pollution and Disposal pollution in streams and rivers and expose the
of Waste Water on Land’ (1983) by U.N. Mahida, I.S.E. downstream riparian population to dangerously
(Retd) the problem of water pollution, the benefits of unhygienic conditions. In addition to the withdrawal of
control of pollution and urgency of the problem have water for downstream towns and cities, in many
been dealt with. At pages 1, 2, 4 and 5 of the said book developing countries, numerous villages and riparian
it is observed thus: agricultural population generally rely on streams and
rivers for drinking water for themselves and their cattle,
“As long as the human population was small and for cooking, bathing, washing and numerous other uses.
428
M.C. MEHTA V UNION OF INDIA
It is thus riparian population that specially needs mistakes committed in the past by many developed
protection from the growing menace of water. countries. It is, however, unfortunate that the importance
of controlling pollution is generally not realised until
.......................................................................................................... considerable damage has already been done.
BENEFITS OF CONTROL 16. In common law the Municipal Corporation can be
restrained by an injunction in an action brought by a
The benefits which result from the prevention of water riparian owner who has suffered on account of the
pollution include a general improvement in the standard pollution of the water in a river caused by the Corporation
of health of the population, the possibility of restoring by discharging into the river insufficiently treated sewage
stream waters to their original beneficial state and from discharging such sewage into the river. In Pride of
rendering them fit as sources of water supply, and the Derby and Derbyshire Angling Association v. British
maintenance of clean and healthy surroundings which Celanese Ltd., 1953) Ch 149, the second defendant, the
would then offer attractive recreational facilities. Such Derby Corporation admitted that it had polluted the
measures would also restore fish and other aquatic life. plaintiff’s fishery in the River Derwent by discharging
into it insufficiently treated sewage, but claimed that by
A part from its menace to health, polluted water the Derby Corporation Act, 1901 it was under a duty to
considerably reduces the water resources of a nation. provide sewerage system, and that the system which had
Since the total amount of a country’s utilisable water accordingly been provided had become inadequate solely
remains essentially the same and the demand for water from the increase in the population of Derby. The Court
is always increasing, schemes for the prevention of water of Appeal held that it was not inevitable that the work
pollution should, wherever possible, make the best use constructed under the Act of 1901 should cause a
of treated waste waters either in industry of agriculture. nuisance, and that in any case the Act on its true
Very often such processes may also result in other benefits construction did not authorise the commission of a
in addition to mere reuse. The application of effluents nuisance. The petitioner in the case before us is no doubt
on agricultural land supplies not only much needed water not a riparian owner. He is a person interested in
to growing crops but also manurial ingredients during protecting the lives of the people who make use of the
the treatment of industrial waste waters often yields by water flowing in the river Ganga and his right to maintain
products which may to some extent offset the cost of the petition cannot be disputed. The nuisance caused by
treatment. the pollution of the river Ganga is a public nuisance which
is wide spread in range and indiscriminate in its effect
If appropriate financial credits could be calculated in and it would not be reasonable to expect any particular
respect of these and other incidental benefits, it would person to take proceedings to stop it as distinct from the
be apparent that measures for the prevention of pollution community at large. The petition has been entertained
are not unduly costly and are within the reach of all as a Public Interest Litigation. On the facts and in the
nations, advanced or developing. It is fortunate that circumstances of the case we are of the view that the
people are becoming more receptive to the idea of sharing petitioner is entitled to move this Court in order to enforce
the financial burden for lessening pollution. It is now the statutory provisions which impose duties on the
recognised in most countries that it is the responsibility municipal authorities and the Boards constituted under
of industries to treat their trade wastes in such a way that the Water Act. We have already set out the relevant
they do not deteriorate the quality of the receiving waters, provisions of the statute which impose those duties on
which otherwise would make the utilisation of such the authorities concerned. On account of their failure to
polluted waters very difficult or costly for downstream obey the statutory duties for several years the water in
settlers. the river Ganga at Kanpur has become so much polluted
that it can no longer be used by the people either for
URGENCY OF THE PROBLEM drinking or for bathing. The Nagar Mahapalika of
Kanpur has to bear the major responsibility for the
The crucial question is not whether developing countries pollution of the river near Kanpur City.
can afford such measures for the control of water
pollution but it is whether they can afford to neglect them. 17. It is no doubt true that the construction of certain
The importance of the latter is emphasised by the fact works has been undertaken under the Ganga Action Plan
that in the absence of adequate measures for the at Kanpur in order to improve the sewerage system and
prevention or control of water pollution, a nation would to prevent pollution of the water in the river Ganga. But
eventually be confronted with far more onerous burdens as we see from the affidavit filed on behalf of the
to secure wholesome and adequate supplies of water for authorities concerned in this case the works are going on
different purposes. If developing countries embark on at a snail’s pace. We find from the affidavits filed on
suitable pollution prevention policies during the initial behalf of the Kanpur Nagar Mahapalika that certain target
stages of their industrialisation, they can avoid the costly dates have been fixed for the completion of the works
429
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
already undertaken. We expect the authorities concerned even if such an order of stay is made in any extraordinary
to complete those works within the target dates mentioned case the High Courts should dispose of the case within a
in the counter-affidavit and not to delay the completion short period, say about two months, from the date of the
of the works beyond those dates. It is, however, noticed institution of such case. We request the High Courts to
that the Kanpur Nagar Mahapalika has not yet submitted take up for hearing all the cases where such orders have
its proposals for sewage treatment works to the State been issued under sections 482 of the Code of Criminal
Board constituted under the Water Act. The Kanpur Procedure, 1973 staying prosecutions under the Water
Nagar Mahapalika should submit its proposals to the State Act within two months. The counsel for the Board
Board within six months from today. constituted under the Water Act shall furnish a list of
such cases to the Registrar of the concerned High Court
18. It is seen that there is a large number of dairies in for appropriate action being taken thereon.
Kanpur in which there are about 80,000 cattle. The
Kanpur Nagar Mahapalika should take action under the 22. One other aspect to which our attention has been
provisions of the Adhiniyam of the relevant bye-laws drawn is the practice of throwing corpses and semi-burnt
made thereunder to prevent the pollution of the water in corpses into the river Ganga. This practice should be
the river Ganga on account of the waste accumulated at immediately brought to an end. The cooperation of the
the dairies. The Kanpur Nagar Mahapalika may either people and police should be sought in enforcing this
direct the dairies to be shifted to a place outside the city restriction. Steps shall be taken by the Kanpur Nagar
so that the waste accumulated at the dairies does not Mahapalika and the Police authorities to ensure that dead
ultimately reach the river Ganga or in the alternative it bodies or half burnt bodies are not thrown into the river
may arrange for the removal of such waste by employing Ganga.
motor vehicles to transport such waste from the existing
dairies in which event the owners of the dairies cannot 23. Whenever applications for licences to establish new
claim any compensation. The Kanpur Nagar Mahapalika industries are made in future, such applications shall be
should immediately take action to prevent the collection refused unless adequate provision has been made for the
of manure at private manure pits inside the city. treatment of trade effluents flowing out of the factories.
Immediate action should be taken against the existing
19. The Kanpur Nagar Mahapalika should take industries if they are found responsible for pollution of
immediate steps to increase the size of the sewers in the water.
labour colonies so that the sewage may be carried
smoothly through the sewerage system. Wherever 24. Having regard to the grave consequences of the
sewerage line is not yet constructed steps should be taken pollution of water and air and the need for protecting
to lay it. and improving the natural environment which is
considered to be one of the fundamental duties under
20. Immediate action should also be taken by the the Constitution [vide Clause (g) of Article 51A of the
Kanpur Nagar Mahapalika to construct sufficient number Constitution] we are of the view that it is the duty of the
of public latrines and urinals for the use of the poor people Central Government to direct all the educational
in order to prevent defecation by them on open land. The institutions throughout India to teach at least for one hour
proposal to levy any charge for making use of such in a week lessons relating to the protection and the
latrines and urinals shall be dropped as that would be a improvement of the natural environment including
reason for the poor people not using the public latrines forests, lakes, rivers and wild life in the first ten classes.
and urinals. The cost of maintenance of cleanliness of The Central Government shall get text books written for
those latrines and urinals has to be borne by the Kanpur the said purpose and distribute them to the educational
Nagar Mahapalika. institutions free of cost. Children should be taught about
the need for maintaining cleanliness commencing with
21. It is submitted before us that whenever the Board the cleanliness of the house both inside and outside, and
constituted under the Water Act initiates any proceedings of the streets in which they live. Clean surroundings
to prosecute industrialists or other persons who pollute lead to healthy body and healthy mind. Training of
the water in the river Ganga, the persons accused of the teachers who teach this subject by the introduction of
offenses immediately institute petitions under section 482 short term courses for such training shall also be
of the Code of Criminal Procedure, 1973 in the High considered. This should be done throughout India.
Court and obtain stay orders thus frustrating the attempt
of the Board to enforce the provisions of the Water Act. 25. In order to rouse amongst the people the
They have not placed before us the facts of any particular consciousness of cleanliness of environment the
case. We are, however, of the view that since the problem Government of India and the Governments of the States
of pollution of the water in the river Ganga has become and of the Union Territories may consider the desirability
very acute the High Courts should not ordinarily grant of organising “keep the city clean week” (Nagar
orders of stay of criminal proceedings in such cases and Nirmalikarana Saptaha), “keep the town clean” week
430
M.C. MEHTA V UNION OF INDIA
(Pura Nirmalikarana Saptaha) and “Keep the village the Ministry of Environment of the Government of India
clean” week (Grama Nirmalikarana Saptaha) in every to give a serious consideration to the above suggestion.
city, town and village throughout India at least once a
year. During that week the entire city, town or village 26. What we have stated above applies mutatis mutandis
should be kept as far as possible clean, tidy and free from to all other Mahapalikas and Municipalities which have
pollution of land, water and air. The organisation of the jurisdiction over the areas through which the river Ganga
week should be entrusted to the Nagar Mahapalkikas, flows. Copies of this judgement shall be sent to all such
Municipal corporations, Town Municipalities, Village Nagar Mahapalikas and Municipalities. The case against
Panchayats or such other local authorities having the Nagar Mahaplikas and the Nagar Municipalities in
jurisdiction over the area in question. If the authorities the State of Uttar Pradesh shall stand adjourned by six
decide to organise such a week it may not be celebrated months. Within that time all the Nagar Mahapalikas and
in the same week throughout India but may be staggered Municipalities in the State of Uttar Pradesh through
depending upon the convenience of the particular city, whose areas the river Ganga flows shall file affidavits in
town or village. During that week all the citizens this Court explaining the various steps they have taken
including the members of the executive, members of for the prevention of pollution of the water in the river
Parliament and the State Legislatures, members of the Ganga in the light of the above judgement. The case as
judiciary may be requested to cooperate with the local against the several industries in the State of Uttar Pradesh
authorities and to take part in the celebrations by which are located on the banks of the river Ganga will
rendering free personal service. This would surely create be taken up for hearing on the 9th of February, 1988.
a national awareness of the problems faced by the people
by the appalling all round deterioration of the
environment which we are witnessing today. We request Order accordingly
431
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 706 OF 1997
NAIROBI GOLF HOTELS (KENYA) LTD — PLAINTIFF
v.
PELICAN ENGINEERING AND CONSTRUCTION CO. LTD. — DEFENDANT
RULING maintenance of the golf course, the trees and grass
on the premises.
This is a preliminary objection raised against the plain-
tiff’s application for an order of injunction dated 24.3.97. (d) Further plaintiff is a riparian owner with natural
rights “Exjure naturae” to the use of the water from
Plaintiff filed a suit on 24.3.97 against the defendant the River.
claiming damages and a permanent injunction to restrain
the defendant from constructing a dam on or across (e) Defendant is the owner of land reference number
Gatharaini River and from trespassing on the plaintiff’s 15153 curved from Kiambu Forest Reserve which
land. On the same day, plaintiff filed an application for land does not border the Gatharaini River and is
interlocutory injunction to restrain the defendant from separated from the River by a portion of the forest.
constructing a dam on Gatharaini River and from divert-
ing the River water and from trespassing on the plain- (f) From February 1997, defendant contrary to the
tiffs land. Water Act, erected a concrete reinforced wall across
the river up stream, erected a temporary water res-
On the same day, an exparte interlocutory injunction as ervoir pending construction of a dam, installing a
prayed was granted by Khamoni J. That exparte injunc- water pump and diverting large quantities of water
tion is still in existence. from the river via the reservoir to its land for irri-
gated floricultural and horticultural farming and
When the application came for hearing inter parties, Mr. water storage reservoirs thereby extinguishing the
Owino for the defendant raised a preliminary objection natural flow down stream of Gatharaini River.
to the application.
(h) Defendants actions are crippling the plaintiffs user
The basis of the plaintiffs suit and the interlocutory in- of the Windsor dam and water rights causing the
junction is in summary that: grass on the Golf course and vegetation to wither.
(a) Plaintiff owns land reference No.14883 on which it Those are of course allegations as the application and
has erected a prestigious and unique five star resort the suit has not been heard.
hotel/club, conference facilities and an 18 hole golf
club of international repute known as “Windsor Golf Mr. Mike Maina the managing director of the defendant
and Country Club” unparalleled elsewhere in Kenya. has sworn a replying affidavit. The defendant has also
filed a defence. The defence is a mere denial of all the
(b) With a view to conserving nature, plaintiff has na- allegations in the plaint except that defendant admits that
tured, maintained and preserved indigenous trees it is the owner of the land referred to by the plaintiff. All
on the golf course. what Mr. Mike Maina states in the replying affidavit is
that defendant has leased the land to Valentine Growers
(c) The boundary of the land is the centre line of and therefore defendant is wrongly sued. The other thing
Gatharaini River which flows naturally from west Mr. Mike Maina states is that plaintiff has come to court
to east and that with the permission, inter alia, of with unclean hands as it has unlawfully and without per-
Water Apportionment Board, it has erected a dam mission blocked the flow of waters of the river thereby
(Windsor Dam) from which it derives water for the out obstructing and diverting the waters of the river to
432
NAIROBI GOLF HOTELS (KENYA) LTD V PELICAN ENGINEERING AND CONSTRUCTION CO. LTD
waste. ject to section 50 and 74 of the Act. By section 50 of the
Act a person cannot construct a well within 100 yards of
Defendant has raised four preliminary objections to the anybody of surface water or construct a well within half
application namely a mile of another well. By section 74 of the Act, the
Government can declare any areas a conservation area
(i) As by section 3 of the Water Act, water is vested in and refuse the extraction of water. A riparian owner is a
the Government, plaintiff has no locus standi to person who owns land on a bank of a river, or along a
bring the suit. river or bordering a river or contiguous to a river. Under
the common law and as permitted by section 38 of the
(ii) That it is the Water appointment Board which de- Water Act, he has a right to take a reasonable amount
termines the utilisation of Water and therefore plain- account of water from a natural river as it flows past his
tiff should have lodged a complaint with the Water land for ordinary purposes such as domestic use which
Appointment Board. includes such things as watering his animals, his garden.
He can even construct a dam so long as it is not within
(iii) That plaintiff can only come to court for Judicial 100 yards of surface water - It may be that the wider
Review after all the administrative machinery un- right or riparian owner under common law are limited
der the Water Act are exhausted. by the water Act but it is clear that a riparian owner has
the natural right to use the water adjacent to his land for
(iv) That as the defendant has leased the land to Valen- normal use.
tine Growers - a firm, plaintiff can only sue Valen-
tine Growers and not the defendant. For cases where a permit is required, it is an offence to
use the water without a permit (section 36 of the Act).
Mr. Muturi Kigano for the plaintiff has replied to the For the use of water where a permit is required it is the
preliminary objection. He contends inter alia, that High intended user who is required to apply to the Water Ap-
Court has Original unlimited jurisdiction, that plaintiff pointment Board for a permit and anybody objecting to
has permission from Water Appointment Board; defend- the issuing of a licence is required to file an objection. I
ant has not deponed that it has permission from Water can find no provision in the Water Act which gives any
Appointment Board; that defendant has not traversed the member of public a right to complain to either the Water
various breaches complained of; that the lease was hur- Apportionment Board or to Water Resources Authority
riedly registered on 3.4.97 and in any case the lease is for use of water by anybody in the absence of an appli-
invalid in law; that the same Mike Maina M.D of de- cation for a permit. The objection that plaintiff should
fendant is the representative of Valentine Growers; that have exhausted the machinery prescribed in the Water
riparian rights lie against the offending land owner and Act would have been valid if the defendant had said that
riparian owner can obtain an injunction to restrain the it applied for a permit from the water Apportionment
diversion even without proof of damages. Board and that plaintiff failed to file an objection or ap-
peal. As the pleadings and affidavits stand, the defend-
Dealing with the first, second and third objections to- ant has not said that it has applied for a permit and that
gether, it is true that every body of water in Kenya is such a permit was duly granted.
vested in the Government but that is as section 3 of the
Water Act provides subject to any rights of user to any If it is true, as plaintiff pleads,that the defendant has not
person granted under the Act or recognised as being obtained a permit and if it is true that it has committed
vested in any other person. As Mr. Kigano states, the the acts complained of, then it would have committed an
Government is a trustee for the general public. As the offence under S. 36(2) of the Water Act. If such is the
Government is the people, the body of water logically case, then the Minister or Water Resources Authority or
belongs to the people but the Government has to pre- the Water Apportionment Board has power to prosecute
serve it, control it and apportion it for the general good the defendant or take any civil proceedings against the
of the people. It is aptly said that Water is life and no defendant (Section 181). But as section 180(2) of the
doubt that water is very valuable Natural resource. The Act provides, the payment of any such penalty does not
Government controls the use of water by requiring that affect the right of any other person to bring any action or
permits be obtained for some extra ordinary use of wa- take any proceedings against the defendant for alleged
ter. Such cases where permits are required are one speci- illegal construction of the dam and alleged diversion of
fied in section 35 of the Water Act and include cases of water. Plaintiff is such a person and comes to court against
use of water for irrigation. But by S. 38 of the Act, a the defendants for the alleged illegal works and also as a
permit is not required for the abstraction or use of water riparian owner. He has a right of action under S.180 (2)
from any body of water for domestic purposes by any of the Act. Further, plaintiff by virtue of being a riparian
persons having lawful access to the water and if such owner who alleges that defendant is not a riparian owner
abstraction is made without employment of works. This can apply for injunction under the common law to re-
natural right to use water for domestic purposes is sub- strain the non-riparian for extra ordinary use of water
433
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
for irrigation purposes. Halisburys Laws of England vol. can exhaust the application for the injunc-
24 page 574 para 1028. As for the objection that the suit tion and hear it next week after which I
and application cannot be maintained against the defend- can go on appeal.
ant as defendant has leased the land to Valentine Grow-
ers, I note that the defendant has been granted a 99 year E. M. Githinji
lease from April, 1991. If the lease to Valentine Growers Judge
is valid, (I am not going to decide on its validity) it is for
10 years from 1.11.96 after which it will revert to the Mr. Kigano: I agree with that cause - to deal with ap-
defendant for use for over 80 years. One of the acts com- plication for injunction and if it is against
plained of by the plaintiff is trespass to his land. The them, then proceed to appeal on the whole
works complained of by plaintiff are of permanent na- matter.
ture. It is my view that if the defendant has by the lease
authorised Valentine Growers to utilise the land in the E. M. Githinji
manner complained of by the plaintiff and if the utilisa- Judge
tion of the land in that manner is going to cause perma-
nent damage to the plaintiffs investment, the plaintiff has Mr. Kigano: I apply for leave to join Mike Maina as a
a cause of action against the head lessee now without party under order 1 rule 10 CP Rules...
waiting for the estate to fall in possession of the defend-
ant in future. Mr. Owino: We will be objecting to that.
In any case, it is not clear as to who is dealing with the E. M. Githinji
defendants land as Mr. Mike Maina is involved both in Judge
the defendant and in Valentine Growers and seems to
wear two hats. If Valentine Grower feel that they have an Order: The intended application to join Mike
interest to protect it as a firm, it has a right to apply to be Mwangi as a party to be made by a formal
joined as a defendant to protect those interests. application.
For those reasons the preliminary objection has no merit E. M. Githinji
and is over ruled with costs to the plaintiff. I order that Judge
the application do proceed to hearing on merits.
Mr. Owino: The pending application for injunction can
E. M. Githinji be fixed for hearing on 9.6.97 together with
Judge the intended application to join Mike
8.5.97 Maina.
Mr. Kigano: It is alright. Extend interim orders.
Mr. Owino present
Order: By consent hearing of the application for
Mr. Kigano present injunction on 9.6.97 at 11 a.m. Interim or-
ders extended to 9.6.97. Ruling to be typed.
Mr. Owino: We wish to appeal against the Ruling be-
cause you seem to have decided the issue E. M. Githinji
of facts. There is a pending application for Judge
injunction. We need your directions. We
434
Summaries of Decisions
435
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
436
SUMMARIES OF JUDICIAL DECISIONS
FOLLOWING ARE SUMMARIES OF JURISPRUDENCE CASES RELATED TO THE DIVERSE RANGE OF SUBJECT
AREAS TACKLED BY NATIONAL JURISDICTIONS IN FRANCE
CASE No.1 a) Concerning the realisation of public works or de-
velopments:
[Association pour la défense de la population
concernée par la création de la zone de Naujac, La 1. An explanatory note;
Primaube, Luc]
2. The map of the area;
TRIBUNAL ADMINISTRATIF de Toulouse, 24
Janvier 1980 3. A general outline of the envisaged development;
MM. Dechaux, rapp.; Salvadori, c.du g.; Rouquet, av. 4. The main features of the most important works
envisaged;
Topic: Environmental Impact assessment
5. A summary assessment of expenses;
*************************
6. An EIA as described at article 2 of the Decree No.
Key features: - Environmental Impact assessment - 77.1141 of 12 October 1977, when such works are not
Establishment of a Z.A.C. with an industrial accent. - expressly exempted from that requirement... “;
Declaration of public interest. - Application of article 2
of the Law of 10th July 1976. - Contents of the public By virtue of article 2 of the aforesaid Decree: “The
inquiry file. - Contents of the Impact study. - Insufficiency. contents of EIA study shall be in relation with the
- Nullification of Order for failure to comply with formal importance of the development works envisaged and with
EIA requirements-. their anticipated effects on the environment”.
Facts: A request of the “Association de Défense de la Such an EIA should, necessarily present:
population concernée par la création de la zone de Naujac,
La Primaube, Luc”, was presented by its Chairman, in 1. An analysis of the initial state of the site and its
which he sought to obtain nullification, for abuse of environment, which shall deal particularly with the
power, of the Order by the ‘Préfet’ of the Aveyron dated natural riches and the natural agricultural landscapes...
20th September 1978 which declared as being of public affected by the developments or the works;
interest the proposal by the authorities of the Grand
Rodez district area, to create a [Z.A.C.] (planning 2. An analysis of the effects on the environment and,
component zone) with industrial activities, in the “Naujac particularly, on the sites and landscapes, fauna and flora...
à La Primaube commune de Luc”, and authorising the and, otherwise, on the comfort of the neighbourhood
district authorities to acquire either through mutual (noise, vibrations, odours...) or on the hygiene and public
consent or through expropriation, the buildings aimed at sanitation;
the realisation of the project.
3. The reasons why, namely from the point of view of
In this Decision the Administrative Tribunal of Toulouse environmental preoccupations, the project has been
considered the Code of providing for the “expropriation selected among others;
pour cause d’utilité publique”; the Law No. 76-629 of
10th July 1976 relative to the protection of nature; the 4. The measures envisaged by the proponent to suppress,
Decree No. 88-1141 of 12 th October 1977 providing for reduce and whenever possible, to compensate the adverse
the implementation of article 2 of the aforementioned consequences of the project on the environment, as well
Law; the Code of Administrative Tribunals; and the as the estimates of the corresponding costs...”
Decree of 11 January 1965 as amended;
The Tribunal considered that it was not contested that
As a rule provided at article R. 11-3 of the Code providing the undertaking of the project designated as “projet de
for the expropriation for public interest it is a duty for création d’une zone d’aménagement concerté à usage
the authority that expropriates to avail to the district dominant d’activités industrielles de Naujac à La
officer [préfet], a file for the purpose of public inquiry, Primaube, commune de Luc”, which was subjected to
comprising the following: joint public consultations (or inquiries) prior to the
declaration of public interest, as prescribed by the order
437
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
of the district commissioner [préfet] dated 30 march to the protection of nature and article 2 of the Decree
1978, was not exempted from the EIA procedure. providing for its implementation. Further, the file, which
was subjected to the public inquiry, was insufficiently and
The Tribunal further considered that, from the documents irregularly composed.
found in the file, the EIA prescribed by article R. 11-1-6
of the Code of Expropriation, and which was part of the As a formal and substantial shortcoming, the challenged
file presented during the joint public inquiry undertaken order was issued further to a shortcoming in procedure
prior to the decision to declare that the project was of and therefore revealed an abuse of power.
public interest, was not a special document, but rather
just a simple elaboration inserted in the “explanatory The tribunal held,
note” under the title of - “Etude d’impact”[Impact study];
That the order of the “préfet” dated 20 September 1978
According to the Tribunal’s findings the said document declaring the ‘projet de création par le district du Grand
had two parts respectively entitled Rodez de la Zone d’aménagement concerté à usage
dominant d’activités industrielles de Naujac à La
“1) Insertion dans l’environnement (super structure)”, Prumaube as being of public interest is nullified.
and
“2) Dispositions techniques des ouvrages principaux”, CASE No.2:
The information contained in the latter actually TRIBUNAL ADMINISTRATIF de Toulouse, 22 May
encompassed “the main characteristics of the major 1980
works” as provided by article R. 11-3-4 of the Code of
Expropriation. So, the same document contained both MM. Louis Sidney, rapp.; Salvadori, c.du g.
[under the title “notice explicative”] the”explicative note”
required under the provisions of article R. 11-3-1-1, the Topic: Environmental Impact Assessment
“impact study” as also required under article R.11.3.1.6,
and the main characteristics of the works *as required *************************
under article R. 11-3-1-4;
In this case, the local authorities of the Launaget town
As such, the impact study was just a patchwork of were seeking the nullification of an Order by the
information presented on 8 paragraphs of 42 lines in total; Commissioner of the Haute Garonne dated 20th
November 1978, which was authorising the MWP
Furthermore, the elements of information contained in company belonging to Mr. Perret to establish itself and
the “étude d’impact”(impact study) did not encompass operate as a metallic waste recovery workshop.
either indications sufficiently precise and concrete on the
initial state of the site and its environment, or a true The establishment was classified as being part of the First
analysis of the effects of the creation of the Z.A.C. on class of polluting installations as provided in the Legal
the environment, or the reasons why the proposed project Nomenclature of the French Law of 29 July 1976 and
was adopted from the point of view of the environment, subjected to the authorization procedure.
and the measures envisaged for “suppressing, reducing
and compensating” the adverse consequences of the Article 3 of the French Decree providing for the
project on the environment, implementation of the above-mentioned Law provides for
the requirements regarding the contents of EIA studies.
The alleged study only mentioned the refusal to issue an
authorisation under the legislation on classified The Tribunal was of the opinion that the documentation
installations, which are subjected to administrative required in the process of issuance of the authorization
authorisations. did neither contain sufficient, concrete and precise indi-
cations relating to the initial state of the site and its envi-
Considering that a number of such installations subjected ronment, nor an analysis of the effects of the workshop
to the regime of declaration are polluting installations, and on the environment, or the reasons why the project was
that the legislation on soil and construction as well as the adopted from the point of view of environment protec-
one on urban planning and nature protection were to be tion. That the documentation also did not consider that
taken into account, the Tribunal found that the information the project site was located in the vicinities of an agricul-
provided under the denomination of “Etude d’impact” and tural land and upon a groundwater layer etc. And that for
inserted in the explicative note did not comply with the these reasons the Order of the Prefet authorising the Mr
requirements that derive from the combined prescriptions Perret to run a metallic wastes recovery Workshop was
of article 2 of the Law No. 76-629 of 10 July 1976 relative declared as nullified.
438
FRENCH CASES
CASE No.3: region of the Loire, the waters of the river Le Lignon
happened to be polluted by the mud that derived from
CONSEIL D’ETAT, 18 June 1980 the waters from the dam. It was noticed that the interfer-
ence involved depletion of the oxygen tenure of the river
Mlle Laroque, rapp.; M. Franc, c.du g. waters, which provoked the destruction of fish resources
on a distance of about one-mile.
Topic: Environmental Impact Assessment
It was established that Mr. Cravero, an engineer of the
************************* EDF Company was held responsible for the incident.
In this case, the “Comité Departemental de Protection The Societé des Sciences Naturelles Loire-Forez, (a sci-
de la Nature en Saone et Loire” [District Committee for entific research society), the Club des pêcheurs sportifs
the Protection of nature in Saone and Loire] was seeking Forez-velay (an association of Fishermen) and the Fed-
the nullification by the Conseil d’Etat, of an Order is- eration Française des Societés de Protection de la nature
sued by the Counsellor of the Administrative Tribunal of (An NGO for nature protection brought claims before the
Dijon, which dismissed the claim of that Committee, Court, based on article 40 of the Law of 10 July 1976 on
seeking to urgently take note of the absence of EIA in the Protection of Nature and on Articles 1382 and 1383
the documentation relating to the public consultation of the Civil Code that deal with civil liability. The claim-
which was to be held concerning the landscape develop- ants particularly insisted on the importance and the mag-
ment project in the Town of Brangy-sur-Saone. nitude of the pollution caused and they were claiming fi-
nancial compensation for the damages amounting up to
As regards the procedural aspects the Conseil d’Etat 100.000 francs. They also invoked Article 434-1 of the
based its argumentation on Article R.102 of the Code of Rural Code which stipulates that whoever dumps directly
Administrative Tribunals which stipulates that in case of or indirectly any substance whose action or reaction in
urgency, the President of the Tribunal or the Magistrate water destroys fish or causes a nuisance as to its nutri-
in charge, can upon a single request, order the necessary tion, reproduction or nutritional value shall be liable of a
measures without impeding the course of the Action or criminal offence. This provision applies to all the waters
any administrative decision. of lakes, rivers, canals and any other watercourses.
Concerning the substantial aspect of the case; that is, the The Court considered that the Dam should be considered
need to examine the contents of the documentation on as a watercourse since it has a link with the river Lignon,
EIA presented for the Landscape development Project and that the wastes that polluted the river were part of the
in the town of Brangy-sur-Saone, the Conseil d’Etat con- debris brought to the lake by the river itself and that the
sidered that the request of the Comite Departemental de pollution was to be considered as a natural process. The
Protection de la nature should be dismissed before its requests of the three claimants were simply dismissed.
jurisdiction because there was an error of Procedure as
the legality of the documents were not appreciated by
the right lower jurisdiction. CASE No.5:
TRIBUNAL ADMINISTRATIF DE POITIERS, 25
CASE No.4: Octobre 1985
COURT D’APPEL DE LYON, 22 JUNE 1983, Association Ecole 79
CRAVERO
MM. Courtin rapp. De Sevin c. Du g.
MM. Roman pres., Becquet, rapp. Langlade, subst.
Gen.; M. Caron [Barreau de Paris], M Moulard Topic: Nature Protection
[barreau de St.Etienne], av.
*************************
Topic: Water PollutionTopic: Water Pollution
This case involves a claim by Association Ecole 79 re-
************************* questing the Tribunal to nullify an Order issued by the
Prefet and Commissioner of the Deux-Sevres district
In this case, the facts are as follows: which provides for the protection of the biotope of the
Cebron dam water. The Order prohibited access to the
During an authorised technical operation consisting of water in any manner, so preventing the Association Ecole
the emptying (by EDF- Electricite de France) of a com- 79 to practice leisure activities in the dam. The Tribunal
pensating dam located at Sail-sous-Couzan, in the French considered that the Commissioner did not abuse power
439
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
and that the legality of his order was not questionable. It du-Nord, which aimed at condemning M. Pascal Mauffret
based its decision on the law of 10 July 1976 that gives to pay a fine, was rejected as being brought to the in-
large powers to the administrative authorities for the competent jurisdiction to know about it.
purpose of nature protection. The claim of the Associa-
tion was dismissed before the Tribunal.
CASE No.7
CASE No. 6: TRIBUNAL ADMINISTRATIF DE LIMOGES, 15
Janvier 1986
TRIBUNAL ADMINISTRATIF RENNES, 7
Novembre 1985 Association contre la pollution de la haute vallée de
la Gartempe
Commissaire de la République des Côtes-du-Nord c/o Ministre de l’environnement
(Reg. No. 85-224) (Req. Nos. 83-420 et 83-421)
MM. Foucher, rapp, Moreau, c. du g., Grimaud, av.
MM. Latrille, rapp., Lotoux, c.du g.
Topic: Classified installations
Topic: Marine Pollution
*************************
*************************
In this case there was a request dated 25 June 1984 aim-
Key features: - Dumping of oil at Port. - Offence. - Law of ing at the nullification of an order issued by the Com-
5th July 1983. Incompetence of the Administrative judge. missioner of the Department of Creuse which author-
ized the syndicate of Interregional Waste Treatment
A written notification was registered by the tribunal on (SITOM) in the region of Guéret to establish itself and
19 October 1984, from the Provincial commissioner of exploit an Urban Waste Landfill in the town of Saint-
the Côtes-du-Nord Province (Department); relating to an leger-Guéretois. In fact there were two claims which
offence reported on 8 Mai 1984 against M. Pascal were joined into one as the Tribunal considered it to be.
Mauffret, a French national living in Kourou (French
Guyana) for having dumped diesel oil from his ship (the The claims were based on the fact that the authorization
“Bran-Ruz”), at the port of lézardrieux on 8 May 1984. needed the opinion of various services involved in waste
management issues, and also on the fact that there was
The Tribunal considered that following the dumping of an error in the determination of the size of the land allo-
diesel oil, on 8 may 1984, in the Port of Lézardrieux, by cated for the landfill, and also on the fact that the legisla-
the “Bran-Ruz” ship, the charge for the offence was no- tion on forestry was not taken into account as well as the
tified against the owner, M. Pascal Mauffret; and that it one on water management and classified establishments.
was the mandate of the tribunal to seek whether the pro- The Tribunal considered that the absence of dates on the
visions of article L.322-1 of the Code of Maritime Ports various notices issued for justifying the authorization was
and article 2 of the decree No. 80-567 of 18 July 1980 not a sufficient reason. On the second reason that is the
relating to the applicable sanctions in the field of police- error on the size of land it considered that the material
related offences were infringed, since these provisions error noticed in the documentation had already been cor-
prohibit the dumping of soil or wastes in sea water at the rected and therefore the order was valid. On the issue of
ports and their vicinities. compliance with the forest legislation it considered that
the claimants did not have knowledge of new provisions
Furthermore, the tribunal considered that so long as it is embodied in the forest code and that such a claim was to
the dumping of hydrocarbons in the sea by a ship, even be rejected. As regards water legislation, it considered
though it is within the limits of the port, which falls un- that the proposed landfill site was not included in an area
der the London International Convention of 2 Novem- covered by the provisions of the health code of April
ber 1973 relative to the Prevention of Pollution by Ships, 1979 which regulates the protection of perimeters in
the French Law No. 83-583 of 5 July 1983 that sanc- which the classified establishment cannot be set. As re-
tions pollution of the sea by hydrocarbons, and, particu- gards the legislation on classified establishments, which
larly, its article 14, constitutes an obstacle to the admin- takes into account the aspect of risks and pollution of
istrative jurisdiction’s ability to condemn the author of water bodies the Tribunal considered that though the
the act to pay a fine on account of the same facts, and landfill could present serious dangers for the interests
that it was incompetent to undertake the trial. mentioned at Article 1 of the Law of 19 July 1976, the
proposed project suggested specific protective and moni-
As far as the sentence is concerned, the request by the toring measures which could ensure the protection of the
provincial Commissioner of the department of the Côtes- Gartempe river. Therefore the claims were rejected.
440
FRENCH CASES
CASE No.8 1 - annuls the decision by the Engineer of the service of
Industry and Mines of the region of Auvergne Limousin
COUNSEL D’ETAT, 17 Janvier 1986 that approves the opening of a quarry for the exploita-
Société Tioxide c/ Association de défense des marins- tion of uranium in Saint-Sormin-Leulac (Haute-Vienne)
pêcheurs de Grand-Fort-Philippe (Req. no. 05-863) by the Cogema Company.
Mlle Langlade, rapp., M. Stirn, c. du g., S.C.P. Peignot, 2 - dismisses the claim presented to the Administrative
Garreau, av. de la société Tribunal of Limoges by the Federation Limousine pour
Tioxide. l’étude et la protection de la nature (FLEPNA).
************************* In this case the Conseil d’état considered the following
legislation:
This case involves claims from an Association of Fisher-
men seeking redress regarding the activities of Société The Mining Code,
Tioxide which releases industrial effluents in the sea
water. They based their claims on the provisions of the The Code of Administrative Tribunals, and particularly
law of 19 December 1917 relating to the classified es- the decree of 12 October 1977 on EIA which provides
tablishments and also on the order of the Minister of In- that the contents of the Impact Assessment Study should
dustry dated 6 June 1953 relating to the release of waste be in relation with the importance of the proposed de-
water by such establishments and also the law of 16 velopment as regards its effects on the environment. EIA
December 1964 relating to water pollution control and should contain an analysis of the site and its environ-
other texts such as the Code of Administrative Tribunals ments, an analysis of its effects on the environment and
etc. A lower Tribunal had cancelled the authorization the reasons why from the point of view of environmen-
issued by the Commissioner of the Pas-de-Calais to the tal protection such a project has been adopted etc. The
factory relative to the release of effluents in the water. Counseil d’état further considered that through the ex-
The first judges considered that in the circumstances of amination of the documentation before it, the impact
the case an inaccurate application of the provisions of assessment presented by the Cogema Company was only
the Minister’s instruction occurred because a derogation a summary of nuisances that would be created such as
to the prescriptions did not justify the difficulties related noise and the traffic without quantification and there-
to the process. Their value was simply indicative in or- fore the Minister had no basis for his request of nullifi-
der for the Commissioner to prepare the orders in com- cation.
pliance with the law of 19 December 1917. It also con-
sidered that there was an inaccurate appreciation of the The claim was dismissed.
fact because the toxicity of the effluents released by the
factory did not require their neutralization or any prior
treatment before their release. The Counseil d’Etat there- CASE No.10
fore nullified the authorization.
COUNSEL D’ETAT, 11 Avril 1986 Ministre de
l’Environnement c/ Société des
CASE No.9
Produits Chimiques Ugine-Kuhlman (Req. no. 62-234)
TOPIC: Impact Assessment
MM. Guillaume, rapp., Dandelot, c. du g., S.C.P.
CONSEIL D’ETAT, 7 mars 1986: Ministre de Piwnica-Molinié av.
l’Industrie c. Cogema et Flepna
Topic: - Toxic Waste
(Req. No. 49-644) [1]
*************************
MM. Guillaume, rapp., Jeanneney, c. du g., S.C.p.
Labbé-Delaporte, av. In this case the claimant the Minister for Environment
sought the nullification of a judgement dated 12 July 1984
************************* by the Administrative Tribunal of Strasbourg which an-
nulled the request by Société des Produits Chimiques
This case involves a plaint in the name of the state pre- Ugine-Kuhlman to be exempted from the procedure of
sented by the Minister for Industry and Scientific Re- providing an inventory of its chemical wastes deriving
search aiming at the nullification of the judgement of from the exploitation of its factory based at huningue
the Administrative Tribunal of Limoges which: and to ensure the monitoring of hydrological resources.
441
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
The Counsel d’état considered the provisions of the law d’Etat” to:
of 19 July 1976 which stipulates that all workshops, fac-
tories, quarries etc. being exploited by private or public 1 - Nullify the decision dated 27th July 1983 by the
persons and which present dangers or inconvenience to Administrative Tribunal of Strasbourg, upon the
the environment, health and security or sanitation should request of: - the province of the Southern Nether-
take measures to comply with the conditions needed for lands, - the City of Amsterdam (Netherlands), - the
the protection of such interests. It also considered that Wateringue de Delfand (Netherlands), - the
the risks of nuisance presented by the lindane contained Wateringue de Rijnland (Netherlands), - the Asso-
in the wastes which were released by the factory at ciation of Water services (Netherlands), - the
Huningue (haut-Rhin) before its closure in 1974 should Stichting Reinwater Foundation (Netherlands) and
be regarded as directly related to the activity of the com-
pany. Therefore it decided that the judgement of the Tri- - the Society for Water transportation Rhinkennerland
bunal of Strasbourg was null. (Netherlands), which nullified:
- On the one hand, three Orders Nos 65-118, 65-119
CASE No.11 et 6455-450 of the Local Government of the Haut-
Rhin dated 22 December 1980 which extends to 31
[CONSEIL D’ÉTAT, Section 18 Avril 1986] : Société December 1981 the duration of validity of the pre-
“Les mines de potasse d’Alsace” c/province de la vious three Orders which authorise the “Société des
Hollande Septentrionale et autres. Mines de Potasse d’Alsace (M.P.D.A.)” to utilize
its facilities for releasing effluents in the Rhine River
Present: MM.Jhery, rapp., Dandelot, Attorney., S.C.P. and in the great canal of the Alsace, on the territory
Labbé, Delaporte et S.C.P. Nicolay, adv. of the district town of Fessenheim, in order to en-
sure the evacuation of various liquid wastes deriv-
Topic: Transboundary pollution of water ing from their industrial installations;
************************* - On the other hand, an Order No.65-823 of 18 March
1981 through which the “Préfet” of the Haut-Rhin
Key features: authorized the “Société des Mines de Potasse
d’Alsace (M.P.D.A.)” to maintain and utilise the
- Salt effluent releases in the River Rhine by the pollution control facilities for polluting the great
“Mines Domaniales de Potasse d’Alsace”. canal of the Alsace for the evacuation of various
liquid wastes deriving from their industrial instal-
- Right of public persons from foreign countries and lations;
moral persons of the same kind to take civil action
in order to seek redress. B Cause of action or Inter- 2-. to reject the claims presented by the local authorities
est to sue. and the organs mentioned above before the Admin-
istrative Tribunal of Strasbourg;
- License to pollute water. - Decree of 23 February
1973. Licenses issued for an unlimited duration. - The Conseil d’Etat considered the following Laws:
Renewals. - Applicable legal regime. - Extension
of license. - Constitution of France of 4 October 1958
- Provisional and interim measures not to be subjected - Law of 16 December 1964,
to prior inquiry.
- Decree of 23 February 1973,
- Lawfulness of pollution licenses. - Substantive con-
ditions. - The taking into account of transboundary - Order of 20 November 1979;
effects. - Obligation imposed neither by interna-
tional law, nor by national law. - Law of 19 July 1976;
- Procedural Rules applicable to the effluent licenses - Decree of 7 May 1980;
issued for the “classified installations”. Co-ordi-
nation of procedures. Article 12 of the decree of 23 - Decree of 1 st August 1905;
February 1973.
- Treaty of 25 March 1957;
The request of the “Société des Mines de Potasse
d’Alsace (M.P.D.A.)” aimed at instructing the “Conseil - Code of Administrative Tribunals;
442
FRENCH CASES
- Ordinance of 31 July 1945 and not to be subjected to a public inquiry as prescribed by
Article 9 of the decree of 23 February 1973.
- Decree of 30 September 1953;
It further considered, first of all, that no provision either
- Law of 30 December 1977; in the French legislation or in international law was con-
stituting an impediment to the principle of issuance of
The Conseil d’Etat decided as follows: authorizations to release effluents, (at the date during
which the Orders of 22 December 1980 were issued),
Concerning the receivability of the requests presented nor consequently, to the faculty for the administration to
by the Province de la Hollande Septentrionale [Southern adopt an interim and provisional measure as analyzed in
Netherlands] and others before the administrative tribu- this case;
nal of Strasbourg;
Secondly, it also considered that because of the charac-
The Conseil d’Etat considered that the province de la ter and the purpose of the measure, all the arguments
Hollande septentrionale, as well as the City Council of drawn from the fact of ignorance of the rules of proce-
Amsterdam and the specialized bodies of the Nether- dure and the substantive conditions regulating the issu-
lands, which were the claimants before the Tribunal ad- ance of authorizations for effluents dumping are without
ministratif de Strasbourg, had all interest to exploit the effect. That it is so, also for the alleged violation of the
Rhine waters and they also justified an interest which provisions of the decrees of 1er August 1905, 23 Febru-
allowed them to act before the tribunal by bringing the ary 1973 and 7 May 1980, as well as for the interna-
case regarding the issuance of the three orders dated 22 tional obligations that may result from:
December 1980 and Order of 18 March 1981 by the préfet
of the Haut-Rhin relative to the effluents release in the - The Convention of Lucerne of 18 May 1889,
Rhine river by the Société des Mines de Potasse d’Alsace;
- The Exchange of letters between France and The
It further considered that the Société des Mines de Potasse Netherlands of 3 December 1976 or;
d’Alsace was not right to argue that the requests pre-
sented in the lower jurisdictions which were not late at - The Directives of the Council of the European Com-
all, were irreceivable; munities dated 16 June 1975, 18 July 1978 and 15
July 1980;
Concerning the three Orders of 22 December 1980; the
conseil d’Etat considered that, when it is requested to Thirdly, the Conseil d’Etat further considered that in light
renew a pollution license that concerns the pollution of of all these considerations, the “Préfet” who should have
underground water or artificial waters, or even sea wa- only assessed the seriousness of the respective conse-
ters within the territorial limits of the country, the ad- quences of an extension of authorization, (that is limited
ministrative authority can, as an interim measure, main- in time), concerning the dumping, did not commit a mani-
tain the situation as it is, which derives from the previ- fest error of appreciation, with regard to the conciliation
ous authorization, by extending the latter through a de- of all the general interests he was supposed to take into
cision taken before its expiration, in order to take into account. The Conseil d’Etat also considered that article
account the general interest drawn from the serious eco- 12, (title III) of the Decree of 23rd February 1973 in-
nomic consequences that ensue from the closure of the volved co-ordination measures concerning the classified
operating installation. This is so in order to allow the establishments, which are related to the procedures re-
authority to process the new request for a license as pro- spectively applicable in compliance with article 9 of that
vided in the decree of 23 February 1973 and the Decree decree and the regulation on the Classified installations.
of 1 er August 1905. The Conseil d’Etat also considered
that the “Préfet” of the “Hollande Septentrionale [South- It then ruled that the “Société des Mines de Potasse
ern Netherlands] Haut-Rhin, from whom the “Société d’Alsace” had no basis to complain that, through the ju-
des Mines de Potasse d’Alsace “ requested the renewal dicial decision, the Administrative Tribunal of Strasbourg
in July 1980, of its pollution licenses regarding its efflu- nullified the Order of the [Prefet] Commissioner of the
ents in the Alsace Great Canal, which licenses were ex- Hollande Septentrionale Haut-Rhin dated 22 December
piring on 31 December 1980, did not take a decision on 1980. It also ruled that article 3 of the decision by the
the request for renewal as such, (which he settled later Administrative Tribunal of Strasbourg dated 27 July 1983
on, precisely on 3rd March 1981); but he only took an was nullified as it annulled the orders of the Commis-
exclusively provisional and interim measure which was sioner of the Haut-Rhin of 22 December 1980.
443
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
CASE No.12 the basis for such claims for indemnities.
COUR DE CASSATION (Ch. crim.), 23 mai 1986
Société des Sciences naturelles Loire-Forez et autres CASE No. 14
Topic: Water Pollution. - Appeal to the Decision: TRIBUNAL ADMINISTRATIF DE POITIERS, 26
COUR D’APPEL DE LYON, 22 JUNE 1983, Novembre 1986: Association des Deux-Sèvres d’Etude
CRAVERO et d’Action pour la Sauvegarde de la Nature et de
l’Environnement (A.S.N.A.T.E.)
*************************
Topic: Order Protection of Biodiversity and biotopes
This decision of the “Cour de cassation” confirmed the
Order of the COURT D’APPEL DE LYON of 22 JUNE *************************
1983, (CRAVERO) regarding which the three claimants
alleged that they still believed article 434-1 of the Rural Key issues: Legality and validity of the local authority’s
Code and other texts evoked were violated and that the Order to create a protected area. Substantial procedural
jurisdiction of the COURT D’APPEL DE LYON of 22 shortcomings.
June 1983, took a decision which lacked a legal basis.
This Case involves a request by the Association des Deux-
The Cour de Cassation appreciated the decision in light Sèvres d’Etude et d’Action pour la Sauvegarde de la
of the facts and the reasoning of the lower Court and Nature et de l’Environnement (A.S.N.A.T.E.) seeking
considered the appeal claims were to be dismissed. that the Tribunal decides on the withholding, postpon-
ing or nullification of an Order issued by the
Commisioner of the region of the “Deux-Sevres”, relat-
ing to the protection of the Water biotope situated on the
CASE No.13 territories of the Districts of Gourgé, Lageon, Louin and
Saint-Loup-Lamairé.
TRIBUNAL ADMINISTRATIF DE BORDEAUX: 2
Octobre 1986 Although the Order issued by the Prefet served a noble
cause and purpose, the Tribunal considered that by vir-
SEPANSO c/Ministère de l’Environnement et du tue of the existing provisions laid down in the Decree of
Cadre de vie 25 November 1977, the measures for the conservation
of the biotopes and the prevention of species extinction
Topic: Classified Establishments - Controlled Landfill included the enactment by the Prefet, of Orders, only
- Cause for Action after obtaining the opinion of the “Commission
Departementale des Sites” of the region’s Agricultural
************************* Chamber through consultation.
Key Features: Sanitary Landfill - Legality or validity of The Tribunal further noted that the consultation of the
administrative authorization, pollution risks for Agricultural Chamber (“Commission Departementale
groundwater not taken into account - Illegality of Order des Sites”) as required by law before the enactment of
by the Commissioner - Indemnity - Ecological damage the Order was not hampered by exceptional circum-
compensation - Reimbursement of litigation fees. stances and therefore the attitude of the Prefet consti-
tuted a procedural shortcoming which should be sanc-
In this case, the two claims from the “Association pour tioned by the nullification of the Order.
la Protection de l’Environnement” (SEPANSO) that
aimed at requesting the Tribunal to settle the issues of
locus standi, (and whereby the Tribunal admitted the right CASE No.15
of the association to stand before it) as well as that of the
procedural shortcomings by the Ministry of Environment CONSEIL D’ÉTAT, 16 janvier 1987
regarding the renewal of licenses for the exploitation of Commune de Gif-sur-Yvette
the “Brede” sanitary landfill, were joined into one and (Req. No. 55-711)
settled positively.
Mme Lenoir, rapp., M. Stirn, c. du g., M e Odent, av.
However, the Tribunal considered that the claims of the
SEPANSO for indemnification were to be dismissed be- Topic: Environmemental Impact AssessmentTopic:
cause of the fact that the SEPANSO did not suffer any Environmemental Impact Assessment
direct material prejudices or harm which could justify
*************************
444
FRENCH CASES
Key features: In this Case the plaintiff Mr. Jean Chevalerias, sought
that the Conseil d’Etat:
Scope of application of EIA procedure. - Financial Cost
of EIA. - General Programme for EIA. B Notion of EIA. - Annuls the judgement of the Administrative Tribu-
- Programme for urban development. B Operations in nal of Clermont Ferrand, which dismissed his claim
Urban sanitation. - Distinct Operations. - Cost less than aiming at the nullification of an Order issued by the
the legally established threshold of 6 millions Francs. - Commissioner of the Puy-de-Dome, whose effect
No necessity to undertake an impact assessment. was the closure of his metal depot.
On the basis of a plaint and a supplementary “mémoire” - Annuls the Order itself for alleged abuse of power
presented on behalf of the “Commune de Gif-Sur- by the Commissioner Prefet.
Yvette”, claiming that the “Conseil d’Etat” should:
However, before the case was brought to court, Mr
1-. Cancel the decision of 21 July 1983 by the Adminis- Chevalerias had already been given a two-year deadline
trative Tribunal of Versailles which nullified and rejected by the administrative authorities after which he should
the claim by Mrs. Huet, Mrs Joly and Mrs Héloir, re- have closed his depot. The deadline was even postponed
garding the Order of 25 April 1980 which was enacted to twice, but he never complied with the injunctions of
by the “Préfet” of the Essonne region, declaring the ac- the Commissioner.
quisition of a certain piece of land as being of public
interest, as the Order aimed at enlarging the Amodru The Conseil d’Etat considered that by virtue of Article
street, which is located at the city centre of the Gif-Sur- 24 of the Law of 19 July 1976 relating to the classified
Yvette town; establishments, when an installation is already existing
and being exploited without the required authorizations,
2-. Reject the conclusions of the request of Mrs Huet, “the commissioner may request the owner to correct the
Mrs Joly and Mrs Héloir before the Administrative Tri- situation by submitting an appropriate request for au-
bunal of Versailles aiming at the nullification of that Or- thorization. If such a request is dismissed, the commis-
der; sioner can, as may be necessary, order the closure or the
destruction of the said installation....”
The Conseil d’Etat held that under the terms of the sec-
ond part of article 2 of the Law of 10 July 1976 relative Furthermore, it considered that the decision of the com-
to the Protection of Nature which stipulates that: missioner was definitive, and Mr. Chevalerias’ claims that
he had certain rights that he had acquired from the fact
“The studies undertaken prior to the implementation of that the situation has been there for long, could not be
developments or constructions which, on the basis of their received.
importance, their size or magnitude or their impact on
the natural environment, can actually damage the latter, The Conseil d’Etat held that since Mr Chevalerias’operation
should contain an Impact Assessment study which could of his installation has always been a source of nuisance
help assess the consequences”; and the first paragraph and that he was materially and economically unable to cor-
of Article 3-B of the Decree of 12 October 1977, en- rect the situation, that establishment needed to be closed
acted for the application of the above mentioned article in any way and that his claim was rightly dismissed by the
2 of the Law of 10 July 1976, which exempts from the lower tribunal.
Impact Assessment procedure “all the developments,
buildings and works whose total cost is less than six
millions francs. ..”; CASE No.17
The procedure of public interest and the one relative to TRIBUNAL CORRECTIONNEL MENDE, 12 Août
the authorisations provided in the Forest Code are two 1987
separate and distinct administrative procedures.
Topic: Water pollution - Civil liability for environ-
ment damage
CASE No.16 *************************
In this case the claimants were: the Federation of Fisher-
CONSEIL D’ÉTAT, 20 Février 1987, M. Chevalerias ies of the Haute-Loire, Federation for Fisheries and Fish
(Req. No. 70-051) husbandry of the Lozère and the “Association nationale
agréée de protection des salmonidés, (T.O.S),
*************************
445
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
The defendant was Mr. Andre Sabadel. Sabadel should be declared guilty of an offence for wil-
fully causing water pollution;
On the 16 July 1987, after the public hearings, the Tri-
bunal declared the following: As a sanction, the Tribunal condemned him to pay a fine
of 8 000 FF and be jailed for one-month. The imprison-
André Sabadel is being prosecuted for the following facts: ment sanction was to be carried out under the terms and
conditions contained in articles 734 and 735 of the Code
“Having thrown, released or left in the waters of river of Penal procedure. The tribunal ordered that its deci-
Ance, directly or indirectly, any substances the action of sion (excerpts only) be published in the local newspaper
reactions of which have destroyed fish, or caused a nui- entitled Journal La Lozère Nouvelle, at the expense of
sance to its nutrition, to its reproduction or to its value as M. André Sabadel, not exceeding two thousand French
food; facts provided and regulated by articles 407 et 409 Francs.
of the Rural Code”;
M. André Sabadel was ordered to invest monies for set-
These facts were reported respectively on 24 April, 28 ting up (or putting in place) an effluent-treatment de-
May, 18 September and 19 November 1986, 11 Febru- vice, in close collaboration with the Agency in charge of
ary, 7 March and 21 March 1987 water management of the Loire-Bretagne river basin,
within a one-year period starting from the date during
On the facts reported on 14 March 1986: which the Tribunal’s decision was published. Failure to
do this, Mr. André Sabadel should be paying two hun-
Mr. André Sabadel admitted the facts, but argued that dred a fifty French Francs per delayed day of due pay-
the causes of pollution were simply accidental. Indeed it ment.
was made known that further to the breaking of a device
controlling a container of 3,000 litres of chlorine acid, All the claimants (that’s to say: the Federation of Fisher-
this chemical was leaking to the point of totally destroy- ies of the Haute-Loire, Federation for Fisheries and Fish
ing fish in the Ance du Sud River, on a distance of 10 husbandry of the Lozère and the “Association nationale
km; agréée de protection des salmonidés, (T.O.S), were de-
clared to have the right to locus standi;
André Sabadel argued that the elements that constitute
the offence were not materially gathered in the frame- M.André Sabadel was ordered to pay the following to
work of this case, and that no fish actually were dying, the respective claimants:
no damage to flora was noticed; and furthermore apart
from the facts reported on 21 March 1987, the sampling i. 86 712,94 FF to the Federation of Fisheries of the
undertaken by the Administration in charge of Water Haute-Loire as an indemnity for compensation of
(Water Authority) were not made available to the public; the damage, and 1 000 FF in compliance with arti-
therefore a doubt still subsisted on the origin of the pol- cle 475-1 of the Code of Penal procedure;
lution and that the only scientific analysis made avail-
able revealed only insignificant quantities of nitric acid, ii. 17 707,18 FF to the Federation for Fisheries and
etc.; Fish husbandry of the Lozère for compensation of
the damage, and 1 000 FF in compliance with arti-
However, the tribunal was informed that the file con- cle 475-1 of the Code of Penal procedure;
tained evidence of a chronic release in the river, of pol-
luting effluents (i.e. milk-serum) from the milk-process- iii. 2.000 FF to the Association Nationale agréée de
ing plant that belonged to M. Sabadel and which was protection des salmonidés, (T.O.S)”, for the overall
detrimental to the water flora; causes of their complaint.
A continuous release of such effluents would indeed trig- Kahn Freund, levy and Rudden in A source book on
ger lack of oxygen and consequently result in the as- French Law (1979) pp. 116-165.
phyxia of fauna and destruction of flora;
In French judgements, individual precedents are not
The tribunal decided, on the basis of the French Law on quoted, as they would have been in the British system
the Regulation of Pollution that taking into account the for example.
seriousness of the facts before the tribunal, Mr. André
*****
446
FRENCH CASES
SUMMARY OF THE CASE FROM 4) in deciding whether or not to grant the remedies,
CANADA the trial court held against the Society because of the
delay and unnecessary duplication that would result.
FOLLOWING IS THE SUMMARY OF THE The Society launched an appeal to the Federal Courts of
JURISPRUDENCE CASE FROM CANADA Appeal which found that the Oldman River Dam may
have an environmental effect on three areas of federal
responsibility mainly fisheries, Indians and Indian lands,
Friends of the Oldman River v. Canada (1992) the court held that:
The respondent, Society, an Alberta environmental group, 1) the dam project fell within the ambit of the Guide-
brought applications for certiorari and mandamus in the lines Order and that the Department of Transport was an
Federal Court seeking to compel the federal departments “initiating department” and therefore compelled to ap-
of Transport and Fisheries and Oceans to conduct an en- ply it;
vironmental assessment, pursuant to the federal Environ-
mental Assessment and Review Process Guidelines Or- 2) that since the Minister of Fisheries and Oceans was
der, in respect of a dam constructed on the Oldman River aware of a “proposal” as defined in the Guidelines Or-
by the province of Alberta - a project which affects sev- der, he is subject to the Order,
eral federal interests, in particular navigable waters, fish-
eries, Indians, and Indian lands. Alberta had conducted 3) as to the unnecessary duplication that could result
studies over the years which took into account public from granting relief, the Court found that the provincial
views, including the views of Indian Bands, and envi- environmental review was deficient in two respects when
ronmental groups, and in September 1987, had obtained contrasted with the environmental impact assessment re-
from the Minister of Transport an approval for the work quired by the Guidelines order. First, the provincial
under s. 5 of the Navigable Waters Protection Act. This legislation did not place the same emphasis on public
section provides that no work is to be built in navigable participation in the process as the Guidelines Order.
waters, without the prior approval of the Minister. In Secondly, there was nothing in the provincial legislation
assessing Alberta’s application, the Minister considered requiring the same degree of independence of the review
only the project’s effect on navigation and no assessment panel.
under the Guideline Orders was made.
As a result, the appeal was allowed, the approval was
The procedural history shows that the court held that: quashed and the Ministers of Transport and Fisheries and
Oceans were ordered to comply with the Guidelines
1) the Society had standing to bring the suit; Order.
2) the Minister of Transport was not bound to apply As a result, the case is now on appeal from the Federal
the Guidelines Order in assessing the application under Court of Appeal.
the Navigable Waters Protection Act because the Act does
not set out requirements for environmental review but The Issues raised in this case are:
instead confines the Minister to consider only factors
affecting marine navigation, similarly he held that the 1) Statutory validity of the Guidelines Order. The fol-
Minister of Fisheries and Oceans was not bound to ap- lowing questions were posed:
ply the Guidelines Order in assessing the application
because his department had not undertaken the project. a. Is the Guidelines Order authorized by s. 6 of the
Department of Environment Act?
3) in deciding the applicability of Canadian Wildlife
Federation v. Canada to the facts of this case, the trial b. Is the Guidelines Order inconsistent with the Navi-
court distinguished the case on two grounds - first, that gable Waters Protection Act and the Fisheries Act ?
case involved authorization under the International River
Improvements Act, which required prior approval from 2) Obligation of the Ministers to comply with the
the Minister of the Environment, as opposed to the in- Guidelines Order
stant case where approval may be granted under the Navi-
gable Waters Protection Act after the project is com- a. Does s. 4(1) of the Department of the Environment
menced and second, the Rafferty-Alameda project in- Act preclude the application of the Guidelines Or-
volved the Minister of the Environment whose statutory der to the Ministers?
duties under the Department of the Environment Act in-
cluded consideration of the environment; and b. Does the Guidelines Order apply to projects other
than new federal projects?
447
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
c. Are the Ministers “initiating departments”? first be a “proposal” which requires an “initiative, un-
dertaking or activity for which the Government of Canada
d. Is the Navigable Waters Protection Act binding on has a decision-making responsibility.” The proper con-
the Crown in right of Alberta? struction to be placed on the term “responsibility” is that
the federal government, having entered the field in a sub-
3) The Constitution Question ject matter assigned to it under s. 91 of the Constitution
Act, 1867, must have an affirmative regulatory duty pur-
a. Is the Guidelines Order so broad as to offence ss. suant to an Act of Parliament which relates to the pro-
92 and 92A of the Constitution Act, 1867 and there- posed initiative, undertaking or activity.
fore constitutionally inapplicable to the Oldman
River Dam owned by Alberta? Once such a duty exists, it is a matter of identifying the
“initiating department” assigned responsibility for its per-
It was Held that the appeal should be dismissed, with formance, for it then becomes the “decision-making au-
the exception that there should be no order in the nature thority” for the proposal and thus responsible for initiat-
of mandamus directing the Minister of Fisheries and ing the process under the Order.
Oceans to comply with the Guidelines Order.
The Oldman River Dam project falls within the ambit of
Reasoning the Guidelines Order and for which the Minister of Trans-
port alone is the initiating department. The navigable
As regards the Statutory validity of the Guidelines Or- Waters Protection Act, s. 5 places an affirmative regula-
der tory duty on the Minister of Transport to approve any
work that substantially interferes with the navigation may
The Guidelines Order was validly enacted pursuant to s. be places in, upon, over, or under, through or across any
6 of the Federal Department of the Environment Act and navigable water.
is mandatory in nature. It requires all federal depart-
ments and agencies that have a decision-making author- The Court held, however, that the Guidelines Order does
ity for any proposal which may have an environmental not apply to the Minister of Fisheries and Oceans, how-
effect on an area of federal responsibility to initially ever, because there is no equivalent regulatory scheme
screen such proposal to determine whether it may give under the Fisheries Act which is applicable to this project.
rise to any potentially adverse environmental effects (in- The discretionary power to request or not to request in-
cluding socio-economic effects). formation to assist a Minister in the exercise of a legisla-
tive function does not constitute a “decision making re-
The Guidelines Order is consistent with the Navigable sponsibility” within the meaning of the Order. The Min-
Waters Protection Act. There is nothing in the Act which ister of Fisheries and Oceans under s. 37 of the Fisheries
precludes the Minster of Transport from taking into con- Act has only been given a limited ad hoc legislative power
sideration any matters other than marine navigation in which does not constitute an affirmative regulatory duty.
exercising his approval under s. 5. The Minister’s duty
under the Order is supplemental to his responsibility The scope of assessment under the Guidelines Order is
under the Act, and he cannot resort to an excessively nar- not confined to the particular head of power under which
row interpretation of his existing statutory powers to the Government of Canada has a decision making re-
avoid compliance with the Order. There is also no con- sponsibility within the meaning of the term “proposal”.
flict between the requirement for an initial assessment Under the Order, the initiating department which has
as “as early in the planning process as possible and be- been given authority to embark on an assessment must
fore irrevocable decisions are taken in s. 3 of the Guide- consider the environmental effect on all areas of federal
lines Order, and the remedial power under s. 6(4) of the jurisdiction. So the Minister of Transport has to con-
Act to grant approval after the commencement of con- sider the environmental impact of the dam on all areas
struction. That power is an exception to the general rule of federal jurisdiction and not just navigation.
in s. 5 of the Act requiring approval prior to construc-
tion, and in exercising his discretion to grant approval 3) Constitutional Validity of the Guidelines Order
after commencement, the Minister is not precluded from
applying the Order. Provincial vs. Federal Authority
As regards the Applicability of the Guidelines Order Local projects will generally fall within provincial re-
sponsibility, but federal participation will be required if,
The scope of the Order is not restricted to “new federal as in this case, the project impinges on an area of federal
projects, programs, and activities”; the Order is not en- jurisdiction. The Order does not attempt to regulate the
gaged in every time a project may have an environmen- environmental effects of matters within the control of
tal effect on an area of federal jurisdiction. There must the province but merely makes environmental impact as-
448
FRENCH CASES
sessment an essential component of federal decision Order is its procedural or organizational element that
making. In essence, the Order has two fundamental as- coordinates the process of assessment, which can in any
pects. First, there is the substance of the Order dealing given case touch upon several areas of federal responsi-
with the environmental impact assessment to facilitate bility, under the auspices of a designated decision maker
decision making under the federal head of power through (the “initiating” department). The Guidelines Order can-
which a proposal is regulated. This aspect of the Order not be used as a device to invade areas of provincial ju-
can be sustained on the basis that it is legislation in rela- risdiction which are unconnected to the relevant heads
tion to the relevant subject matters enumerated in s.91 of of federal power.
the Constitution Act, 1867. The second aspect of the
*****
449
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
450
FRENCH CASES
Section 8
French Cases
451
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
452
FRENCH CASES
CASES FROM FRANCE Insuffisance. Annulation pour vice de former
TRIBUNAL ADMINISTRATIF de Toulouse, 24
POLLUTION DE LA MER janvier 1980
Association pour la défense de la population
Convention de Bruxelles du Septembre 1968. Concernée par la création de la zone de Naujac, La
Compétence judiciaire. Compétence territoriale. Primaube, Luc
Faute délictuelle . Réparation du domage. Tribunal
du lieu de dommage. MM. Dechaux, rapp.; Salvadori, d.du g.; Rouquet,
av.
COUR DE CASSATION (civ.2) 3 Avril 1978 (1) .
Société Montedison contre Préfet du département de *************************
la Haute Corse et autres.
Requête de l’«Association de Défense de la population
MM.Bel,pres; Granjou, rapp.; Clerget, av. gén.; concernée par la création de la zone de Naujac, La
Labbé et Ryziger, av. Primaube, Luc», représentée par son président et tendant
à l’annulation, pour excès de pouvoir de l’arrêté du préfet
************************* de l’Aveyron en date du 20 septembre 1978 déclarant
d’utilité publique le projet de création par le district du
LA COUR, grand Rodez de la Z.A.C. à usage dominant d’activités
industrielles de Naujac à La Primaube’ commune de Luc
......Sur le deuxième moyen, pris en ses deux branches: et autorisant le district à acquérir soit à l’amiable, soit
par voie d’expropriation les immeubles destinés à l
Attendu que l’arrêt, statuant sur contredit, a déclaré le réalisation de cette opération;
tribunal de Grande Instance de Bastia compétant, en ap-
plication de l’article 5-3e de la Convention de Bruxelles Vu le Code de l’expropriation pour cause d’utilité
du 27 Septembre 1968 pour connaitre, comme juridiction publique; Vu la loi 76-629 du 10 juillet 1976 relatives à
du lieu ou le fait dommageable s’est produit, de l’action la protection de la nature; Vu le décret 88-1141 du 12
engagée par la Prud’homie des pêcheurs de Bastia contre octobre 1977 pris pour l’application de l’article 2 de ladite
la societé Montedison en réparation du préjudice causé loi; Vu le Code des Tribunaux administratifs; Vu le décret
à ses membres par les déversements en mer de déchets du 11 janvier 1965 modifié;
industriels, les départements de la Corse du Sud et de la
Haute Corse étant intervenus au cours de l’instance; Sur les conclusions à fin d’annulation, sans qu’il soit
besoin de statuer sur les autres moyens de la requête:
Mais attendu que, par un motif adopté du jugement,
l’arrêt constate que des conséquences dommageables des Considérant qu’aux termes de l’article R. 11-3 du Code
déversements se sont manifestés dans les eaux de l’expropriation «l’expropriant adresse au préfet pour
territoriales de la circonscription du Tribunal de Bastia; être soumis à l’enquête un dossier qui comprend
que l’arrêt enonce que les actions en responsabilité obligatoirement:
postulaient que les dommages auraient été ressentis dans
cette circonscription, qu’en l’état de ces constatations et a) Lorsque la déclaration d’utilité publique est
énonciations, d’ou il résulte que l’allégation des demandée en vue de la réalisation des travaux ou
dommages apparaissait comme sérieuse, la Cour d’appel, d’ouvrages:
qui s’est bornée, sans se contredire, à statuer sur la
compétence territoriale, a légalement justifié sa décision 1. une notice explicative;
de ce chef.
2. le plan de situation;
Que le moyen n’est pas fondé;
3. le plan général des travaux;
PAR CES MOTIFS :
4. les caractéristiques principales des ouvrages les plus
REJETTE LE POURVOI formé contre l’arrêt rendu le importants;
28 Février 1977 par la Cour d’appel de Bastia .
5. l’appréciation sommaire des dépenses;
Etude d’impact, Création d’une Z.A.C. à dominante
industrielle. Déclaration d’utilié publique. Applica- 6. l’étude d’impact définie à l’article 2 du décret 77.1141
tion de l’article 2 de la loi du 10 juillet 1976. Composi- du 12 octobre 1977, lorsque les ouvrages ou travaux n’en
tion du dossier d’enquête. Contenu de l’étude. sont pas dispensés... »;
453
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Considérant qu’en vertu de l’article 2 dudit décret: «Le réduisait aux informations présentées sur 8 paragraphes
contenu de l’étude d’impact doit être en relation avec de 42 lignes au total;
l’importance des travaux et aménagements projetés et
avec leurs incidences prévisibles sur l’environnement. Considérant en trosième lieu que les éléments
d’information contenus dans cette «étude d’impact» ne
L’étude d’impact présente nécessairement: comportaient ni des indications suffisamment précises et
concrètes sur l’état initial du site et son environnement,
1. une analyse de l’état initial du site et de son ni une véritable analyse des effets de la création de la
environnement portant notamment sur les richesses Z.A.C. sur l’environnement, ni les raisons pour lesquelles
naturelles et les espaces naturels agricoles... affectés par le projet présenté a été retenu du point de vue de
les aménagements ou ouvrages; l’environnement, les mesures envisagées pour «supprimer,
réduire et compenser» les conséquences commageables
2. une analyse des effets sur l’environnement et, en du projet sur l’environnement, dès lors que cette prétendue
particulier, sur les sites et paysages, la faune et la flore... étude se bornait à faire état d’un refus d’autorisation des
et, le cas échéant, sur la commodité du voisinage (bruit, installations classées soumises à autorisation - alors que
vibrations, odeurs...) ou sur l’hygiène et la salubrité nombre d’installations soumises à déclaration sont
publique; poluantes, - et à renvoyer à des prescriptions ultérieures,
à définir, - notamment par voie d’un règlement de la Z.A.C.
3. les raisons pour lesquelles, notamment du point de - les mesures à prendre en matière de coefficient des sols
vue des préoccupations d’environnement, parmi les partis et d’emprise au sol des bâtiments, mesures relavant
envisagés, le projet présenté a été retenu; d’ailleurs davantage de la législation de l’urbbanisme que
de celles de la protection de la nature;
4. les mesures envisagées par le maître de l’ouvrage ou
le pétitionnaire pour supprimer, réduire et, si possible, Considérant qu’il résulte de tout ce qui précède que les
compenser les conséquences commageables du projet sur informations fournies sous la dénomination «Etude
l’environnement, ainsi que l’estimation des dépenses d’impact» insérées dans la notince explicative ne
correspondantes...» répondaient pas aux exigences découlant des prescrip-
tions combinées de l’article 2 de la loi 76-629 du 10 juillet
Considérant d’une part qu’il n’est pas contesté par 1976 relatives à la protection de la nature et de l’article 2
l’administration que l’opération dénommée «projet de du décret pris pour son application;
création d’une zone d’aménagement concerté à usage
dominant d’activitées industrielles de Naujac à La que, par suite, le dossier soumis à enquête publique était
Primaube, commune de Luc», faisant l’objet des enquêtes insuffisant et irrégulièrement composé, qu’en raison de
conjointes préalables à la déclaration d’utilité publique ce vice de forme substaniel, l’arrêté attaqué est entervenu
et parcellaire prescrites par l’arrêté préfectoral du 30 mars à la suite d’une procédure irrégulière et se trouve entaché
1978, n’était pas dispensée de l’étude d’impact; d’excès de pouvoir;
Considérant en second lieu qu’il résulte des pièces du Sur les conclusions à fin de sursis à exécution:
dossier que l’étude d’impact prescrite par l’article R. 11-
1-6 du Code de l’expropiration, et insérée dans le dos- Considérant qu’il résulte de ce qui précède spécialement
sier présenté lors de l’enquête publique conjointe de l’annulation de l’arrêté attaqué que les conclusions
préalable à la déclaration d’utilité publique et à la tendant au sursis à exécution dudit arrêté sont devenues
déclaration de cessibilité, ne faisait pas l’objet d’un docu- sans objet;
ment spécial, mais d’un simple développement inséré
dans la «notice explicative» sous le sous-titre dénommé Par ces motifs,
«Il - Etude d’impact»; que si cette «étude» était divisée
en deux parties appelées «1) Insertion dans DECIDE:
l’environnement (super structure)», et »2) Dispositions
techniques des ouvrages principaux», les informations Article 1 er: ..................................
contenues sous ce dernier vocable contenaient en réalité
«les caractéristiques principales des ouvrages les plus Article 2: L’arrêté préfectoral en date du 20 septembre
importants» prévues par l’article R. 11-3-4« du Code de 1978 déclarant d’utilité publique le projet de création
l’expropriation; qu’ainsi le même document comportait par le district du Grand Rodez de la Zone d’aménagement
à la fois sous la dénomination «notice explicative» 1) la concerté à usage dominant d’activités industrielles de
«notice explicative» exigée par l’article R. 11-3-1-1«, 2) Naujac à La Prumaube est annulé.
l’«étude d’impact» exigée par l’article R.11.3.1.6«, et 3)
les caractéristiques principales des ouvrages «exigées par Article 3: Il n’y a lieu de stature sur les conclusions
l’article R. 11-3-1-4»; qu’ainsi, l’étude d’impact se tendant au sursis à exécution de cet arrêté.
454
FRENCH CASES
Etude d’impact. Installation classée. Contenu. dispositions d’aménagement et d’exploitation prévues,
Insuffisance au regard de la loi du 10 juillet 1976 et du leurs caractéristiques détaillées ainsi que les perform-
décret du 12 octobbre 1977. Annulation de l’arrêté ances attendues.
d’autorisation.
5° Une étude exposant les dangers que peut présenter
TRIBUNAL ADMINISTRATIF DE TOULOUSE, l’installation en cas d’accident et justifiant les mesures
22 mai 1980 propres à en réduire la probabilité et les effets,
Commune de Launaguet déterminées sous la responsabilité du demandeur. Cette
étude précisera notamment, compte tenu des moyens de
MM. Louis Sidney, rapp.; Salvadori, c. du g. secours publics portés à sa connaissance, la consistance
et l’organisation des moyens de secours privés dont le
************************* demandeur dispose ou dont il s’est assuré le concours en
vue de combattre les effets d’un éventuel sinistre;«qu’aux
Vu la requête présentée par la commune de Launaguet termes de l’article 2 du décret n° 77-1141 en date du 12
(Haure-Garonne) tendant à ce qu’il plaise au Tribunal octobre 1977: «Article 2. - Le contenu de l’étude d’impact
d’annuler, pour excès de pouvoir, l’arrêté en date du 20 doit être en relation avec l’importance des travaux et
novembre 1978 par lequel le Préfet de la Haute-Garonne aménagements projetés et avec leurs incidences
a autorisé M.W.P. à exploiter un atelier de récupération prévisibles sur l’environnement. L’étude d’impact
de métaux; présente successivement:
Considérant que les conclusions de la commune de 1° Une analyse de l’état initial du site et de son
Launaguet tendent à obtenir l’annulation de l’arrêté en environnement, portant notamment sur les richesses
date du 20 novembre 1978 par lequel le Préfet de la naturelles et les espaces naturels agricoles, forestiers,
Haute-Garonne a autorisé l’installation de l’établissement maritimes ou de loisirs, affectés par les aménagements
de récupération de métaux de M. Perret sis impasse ou ouvrages;
Pivoulet sur le territoire de ladite commune,
l’établissement en cause relevant de la 1ere classe des 2° Une analyse des effets sur l’environnement, et en
installlations soumises à autorisation par la loi du 29 particulier sur les sites et les paysages, la faune et la flore,
juillet 1976 susvisée; les milieux naturels et les équilibres biologiques et, le
cas échéant, sur la commodité du voisinage (bruits, vi-
Considérant qu’aux termes de l’article 3 du décret n° brations, odeurs, émissions lumineuses), ou sur l’hygiène
77-1133 en date du 21 septembre 1977 pris pour et la salubrité publique;
l’application de la loi du 19 juillet 1976 relative aux in-
stallations classées pour la protection de l’environnement: 3° Les raisons pour lesquelles, notamment du point de
4° «l’étude d’impact prévue à l’article 2 de la loi du 10 vue des préoccupations d’environnement, parmi les partis
juillet 1976 indiquera les éléments propres à caractériser envisagés, le projet présenté a été retenu;
la situation existante au regard des intérêts visés à l’article
1er de la loi du 19 juillet 1976 et fera ressortir les effets 4° Les mesures envisagées par le maître de l’ouvrage ou
prévisibles de l’installation sur son environnement, au le pétitionnaire pour supprimer, réduire et, si possible,
regard des intérêts; compenser les conséquences dommageables du projet sur
l’environnement, ainsi que l’estimation des dépenses
L’étude détaillera en outre l’origine, la nature et correspondantes.»
limportance des inconvénients susceptibles de résulter
de l’exploitation de l’installation considérée. A cette fin, Considérant qu’il résulte de l’instruction que l’étude
elle indiquera notamment en tant que de besoin, le niveau d’impact jointe au dossier d’autorisation de l’installation
acoustique des appareils qui seront employés, le mode litigieuse ne comporte pas des indications suffisament
et les conditions d’approvisionnement en eau et précises et concrètes sur l’état initial du site et son
d’utilisation de l’eau, les dispositions prévues pour la environnement; qu’elle ne fournit pas une véritable ana-
protection des eaux souterraines, l’épuration et lyse des effets de la création de l’atelier de récupération
l’évacuation des eaux résiduaires et des émanations et de traitement des métaux sur l’environnement, ni les
gazeuses, l’élimination des déchets et résidus de raisons pour lesquelles le projet d’installation présenté a
l’exploitation, les conditions d’apport à l’installation des été retenu du point de vue de l’environnement; qu’ainsi
matières destinées à y être traitées et de transport des les lacunes de ce document touchent entre autres à la
produits fabriqués. nature même des cultures pratiquées au voisinage dans
une zone à vocation première essentiellement agricole,
Les mesures envisagées par le demandeur pour à la prévention des nuisances et en particulier en ce qui
supprimer, limiter ou compenser les inconvénients de concerne les effets des activités de traitement des métaux
l’installation feront l’objet de descriptifs précisant les sur la nappe phréatique, à la sélection des techniques
455
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
spécifiques à la marche de l’atelier et enfin au choix trative préalable, ordonner toutes mesures utiles sans faire
proprement dit du site de son implantation; que dès lors préjudice au principal et sans faire obstacle à l’exécution
les insuffisances constatées et l’imprécision des indica- d’aucune décision administrative»;
tions fournies font qu’un tel document ne répond pas
dans son contenu aux exigence découlant des prescrip- Considérant que le Comité Départemental de Protection
tions édictées par l’article 2 de la loi n° 76-629 du 10 de la nature en Saône-et-Loire a demandé au Président
juillet 1976 relative à la protection de la nature ainsi que du Tribunal Administratif de Dijon, par voie de référé,
par l’article 2 du décret du 12 octobre 1977 pris pour son qu’il soit procédé à l’examen du document figurant
application; qu’en raison même de ce vice de forme comme étude d’impact au dossier soumis à l’enquête
substantiel l’arrêté attaqué du Préfet de la Haute-Garonne publique sur le projet de remembrement de la commune
est intervenu à la suite d’une procédure irrégulière; qu’il de Bragny-sur-Saône et qu’il soit constaté que ledit docu-
se trouve entâché d’excès de pouvoir et ne peut pour ce ment, eu égard à ses insuffisances et à ses lacunes, ne
motif qu’être annulé; présentait pas le caractère d’une étude d’impact telle
qu’elle est définie à l’article 2 de la Loi du 10 Juillet
Par ces motifs, 1976 et à l’article 2 du Décret du 12 Octobre 1977; qu’il
n’appartenait pas au juge des référés de se livrer à
DECIDE: l’appréciation que comportait la mesure demandée,
laquelle relevait du seul juge de la légalité et faisait ainsi
Article 1: L’arrêté susvisé en date du 20 novembre 1979 préjudice au principal; que, dès lors, l’association
du Préfet de la Haute-Garonne autorisant M. William requérante, qui, au surplus et en tout état de cause, ne
Perret à installer un chantier de récupération de métaux pouvait, faute d’avoir saisi le Tribunal administratif de
et un dépôt de véhicules hors d’usage, à Launaguet est demandes à fin d’annulation et de
annulé.
sursis à exécution d’une décision administrative, se
Etude d’impact. Sursis automatique. Procédure prévaloir des dispositions de l’article 2 dernier alinéa de
d’urgence. Référé irrecevable. la loi du 10 Juillet 1976, n’est pas fondée à se plaindre
que par l’ordonnance attaquée le conseiller de Tribunal
CONSEIL D’ETAT, 18 juin 1980 Administratif délégué par le Président du Tribunal Ad-
ministratif de Dijon a rejeté sa demande;
(Req. n° 17 605) Comité départemental de protection
de la nature en Saône-et-Loire DECIDE:
Mlle Laroque, rapp.; M. Franc, c. du g. Article 1er: La requête du Comité Départemental de Pro-
tection de la Nature en Saône-et-Loire est rejetée.
*************************
Vidange de barrage. Déversement de boues mêlées de
Requête du Comité départemental de protection de la débris végétaux. Destruction de poissons. Code rural.
nature en Saône-et-Loire tendant à ce que le Conseil Article 434-1 (407 nouveau). Infraction constituée (non)
d’Etat: - Relaxe
1° annule la décision du 11 avril 1979 par laquelle le
Conseiller délégué par le Président du Tribunal Admin- COUR D’APPEL DE LYON, 22 juin 1983, Cravero
istratif de Dijon a rejeté sa demande tendant à ce que
soit constatée d’urgence l’absence d’étude d’impact dans MM. Roman prés., Becquet, rapp., Langlade,
le dossier d’enquête du projet de remembrement subst.gén.; Me. Carron [Barreau de Paris], Moulard
concernant la commune de Brangny-sur-Saône [Barreau de St-Etienne], av.
2° ordonne ce constat d’urgence; *************************
Vu la loi du 10 Juillet 1976. Attendu qu’il n’est pas contesté que le 7 septembre 1981
à Sail-sous-Couzan (Loire), au cours d’une opération de
Considérant qu’aux termes de l’article R.102 du Code vidange du barrage compensateur de la Beaume exploité
des Tribunaux Administratifs «Dans tous les cas par Electricité de France, nécessitée par des travaux
d’urgence, le Président du Tribunal Administratif ou le d’entretien et régulièrement autorisée par
magistrat qu’il délègue peut, sur simple requête qui sera l’administration, les eaux de la rivière Le Lignon en aval
recevable même en l’absence d’une décision adminis- du barrage ont été polluées par des boues provenant de
456
FRENCH CASES
la retenue, qui ont diminé la teneur en oxygène de l’eau s’applique aux eaux libres, lacs canaux, ruisseaux ou
de telle sorte que le poisson a été détruit sur environ un cours d’eau quelconques (art. 401), par opposition aux
kilomètre et demi; étangs ou enclos n’ayant aucune communication avec
les eaux libres; qu’aucune disposition de ce titre, ni du
Attendu que Cravero et son employeur civilement titre II du livre premier relatif aux cours d’eaux non
responsable sollicitent sa relaxe, par divers moyens de domaniaux, ni de la loi du 16 octobre 1919 relative à
fait et de droit et notamment en soutenant qu’il n’a com- l’utilisation de l’énergie hydraulique n’exclut des cours
mis aucune faute; qu’ils invoquent subsidiairement une d’eaux soumis à l’application du Code Rural les retenues
situation de force majeure ou un état de contrainte qui aménagées artificiellement en vue de la production
exonérerait le prévenu de toute responsabilité pénale; d’énergie électrique ou dans tout autre but; que les dis-
qu’ils demandent à titre encore plus subsidiaire que, si positions de l’article 428 dudit Code relatives à
une condamnation est prononcée, elle soit réduite à une l’établissement d’échelles destinées à assurer la libre cir-
amende symbolique; qu’ils soulèvent l’irrecevabilité des culation du poisson dans les fleuves, rivières, canaux et
constitutions de partie civile, les associations présentes cours d’eau équipés de barrages consacrent
aux débats ne justifiant selon eux d’aucun préjudice di- l’appartenance des retenues des barrages à la catégorie
rect causé par l’infraction poursuivie, et la poursuite des cours d’eau;
n’étant pas exercée en vertu des articles 3 à 7 ou 18 de la
Loi du 10 juillet 1976 sur la protection de la nature; Attendu qu’en l’espèce, la retenue du barrage de la
Beaume fait partie d’un cours d’eau puisqu’elle com-
Attendu que la société des sciences naturelles Loire- munique au moins avec le cours supérieur du Lignon
Forez, le club des pêcheurs sportifs Forez-Velay et la qui l’alimente;
Fédération française des sociétés de protection de la na-
ture, invoquant l’article 40 de la loi du 10 juillet 1976 Attendu que les boues mêlées de débris végétaux, dont
précitée et les articles 1382 et 1383 du Code civil, et le déversement en aval, au cours des opérations de
insistant sur l’importance des dommages écologiques vidange, a détruit le poisson, ont été apportées dans cette
causés selon eux par le fait poursuivi, conncluent à la retenue par la rivière elle-même;
confirmation du jugement déféré en ce qui concerne la
responsabilité du prévenu et de son employeur civilement Attendu qu’un tel déversement de produits naturels se
responsable et demandent; trouvant déjà dans le cours d’eau au moment de
l’intervention du prévenu n’entre pas dans les prévisions
- les deux premiers, conjointement, la somme de 100 de l’article 434-1 du Code Rural; que par conséquent
000 F à titre de dommages-intérêts, l’insertion d’un Cravero doit être relaxé;
extrait de la décision de condamnation dans quatre
journaux à titre de supplément de dommages-intérêts et Attendu que cette décision de relaxe entraîne de plein
les sommes de 5 000 F pour leur intervention en première droit la mise hors de cause d’Electricité de France et le
instance et de 3 000 F pour leur intervention en appel au rejet des demandes des parties civiles, sans qu’il soit utile
titre de l’article 475-1 du Code de procédure pénale; d’examiner la recevabilité de leur intervention;
- la dernière, la confirmation des dommages-intérêts fixés
par les premiers juges outre 2 000 F pour son interven- PAR CES MOTIFS:
tion en première instance et 1 500 F pour son interven-
tion en appel au titre de l’article 475-1 susvisé; La Cour, statuant publiquement, contradictoirement, en
matière correctionnelle, après en avoir délibéré
Attendu que la poursuite est exercée en vertu de l’article conformément à la loi:
434-1 alinéa premier du Code Rural, inséré dans ce code
par l’ordonnance n° 59-25 du 3 Janvier 1959, qui - Renvoie Cravero Jean-Marie des fins de la poursuite;
incrimine quiconque aura jeté, déversé ou laissé écouler
dans les cours d’eau, directement ou indirectement, des - Met hors de cause Electicité de France;
substances quelconques, dont l’action ou les réactions
ont détruit le poissons ou nui à sa nutrition, à sa repro- - Déboute de leurs demandes la Société de Sciences
duction ou à sa valeur alimentaire; naturelles Loire-Forez, le Club des pêcheurs sportifs
Forez-Velay et la Fédération française des sociétés
Attendu que le titre II du livre III du Code Rural, relatif de protection de la nature; les condamne aux frais
à la pêche fluviale auquel appartient l’article 434-1, de leur intervention.
457
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
PROTECTION DE LA NATURE une telle interdiction qui constitue la mesure appropriée
pour assurer la protection des reptiles, amphibiens et
Arrêté de protection de biotope. Plan d’eau. Pratique oiseaux désignés à l’article 2 de l’arrêté dont il s’agit;
de la planche à voile. Interdiction justifiée, assurant la que l’atteinte ainsi portée à l’exercice des libertés
protection des reptiles, amphibiens et oiseaux. Légalité individuelles doit être considérée comme une restriction
(1er espèce). justifiée et non entachée d’illégalité; qu’il résulte de ce
qui précède que la requête de l’Association «Ecole 79»
TRIBUNAL ADMINISTRATIF DE POITIERS, ne peut qu’être rejetée;
25 Octobre 1985
Association «Ecole 79» DECIDE:
MM. Courtin, rapp., de Sevin, c. du g. Article premier. - Le requête susvisée de l’Association
«Ecole 79» est rejetée.
*************************
Art. 2. - Notification du présent jugement sera faite, dans
Vu la requête présentée par l’Association «Ecole 79» et les conditions prévues par l’article R. 177 du Code des
tendant à ce que le tribunal annule l’arrêté du préfet, Tribunaux Administratifs, au président de l’Association
commissaire de la République des Deux-Sèvres, portant «Ecole 79», au ministre de l’Environnement.
protection du biotope constitué par la retenue d’eau du
Cébron et de ses rives;
Sans qu’il soit besoin de statuer sur la recevabilité de la POLLUTION DE LA MER
requête:
Rejet d’hydrocarbures dans un port. Contravention de
Considérant qu’aux termes de l’article 4 du décret n° grande voirie ou loi du 5 juillet 1983. Incompétence du
77-1295 en date du 25 Novembre 1977 pris pour juge administratif.
l’application des articles 3 et 4 la loi n° 76-629 du 10
Juillet 1976 relative à la protection de la nature et TRIBUNAL ADMINISTRATIF RENNES,
concernant la protection de la flore et de la faune sauvages 7 novembre 1985
du patrimoine naturel français: «Afin de prévenir la
disparition d’espèces figurant sur la liste prévue à l’article Commissaire de la République des Côtes-du-Nord
4 de la loi du 10 Juillet 1976, le préfet peut fixer, par (Reg. n° 85-224)
arrêté, les mesures tendant à favoriser, sur tout ou partie
du territoire d’un département, à l’exclusion du domaine MM. Latrille, rapp., Lotoux, c.du g.
public maritime où les mesures relèvent du ministre
chargé des Pêches maritimes, la conservation des *************************
biotopes tels que mares, marécages, marais, haies,
bosquets, landes, dunes, pelouses ou toutes autres for- Vu, enregistré le 19 octobre 1984, le déféré par le préfet,
mations naturelles, peu exploitées par l’homme, dans la commissaire de la République du département des Côtes-
mesure où ces biotopes ou formations sont nécessaires à du-Nord, du procès-verbal de contravention de grande
l’alimentation, à la reproduction, au repos ou à la survie voirie dressé le 8 Mai 1984 à l’encontre de M. Pascal
des espèces... Le préfet peut interdire, dans les mêmes Mauffret, demeurant au port de Kourou (Guyanne)
conditions, les actions pouvant porter atteinte d’une 97310, pour avoir, le 8 mai 1984, déversé de son navire,
manière indistincte à l’équilibre biologique des milieux le «Bran-Ruz», du gas-oil dans le port de lézardrieux;
et notamment l’écobuage, le brûlage des chaumes, le
brûlage ou le broyage des végétaux sur pied, la destruc- Considérant qu’à la suite du déversement de gas-oil, le 8
tion des talus et des haies, l’épandage de produits mai 1984, dans le port de Lézardrieux, par le navire
antiparasitaires»; «Bran-Ruz», procès-verbal de contravention de grande
voirie a été dressé à l’encontre de son propriétaire, M.
Considérant que le préfet, commissaire de la République Pascal Mauffret; que, par déféré en date du 19 Octobre
du département des Deux-Sèvres, a interdit, dans son 1984, le préfet, commissaire de la République du
arrêté portant protection d’un biotope constitué par département des Côtes-du-Nord se borne à demander la
l’emprise de la retenue d’eau du Cébron et de ses rives, condamnation du contrevenant à une amende et au
«d’accéder à l’eau par quelque moyen que ce soit» et remboursement des frais avancés par l’administration
«d’accéder, entre l’eau et la clôture de ceinture», sauf pour la remise en état du port;
exceptions limitativement énumérées, faisant ainsi ob-
stacle à ce que puisse être pratiquée la planche à voile Considérant qu’il appartient au juge de la contravention
sur ladite retenue d’eau; que le préfet, commissaire de la de grande voirie de rechercher, même d’office, comme
République, était fondé à prononcer, ainsi qu’il l’a fait
458
FRENCH CASES
en l’espèce, si les faits constatés dans le procès-verbal TRIBUNAL ADMINISTRATIF DE LIMOGES,
produit à la procédure constituent une infraction aux dis- 15 Janvier 1986
positions relatives à la conservation ou à l’exploitation
des ports; Association contre la pollution de la haute vallée de
la Gartempe c/ Ministre de l’environnement
Considérant qu’il résulte des dispositions combinées à (Req. n° s 83-420 et 83-421)
l’article L.322-1 du Code des Ports Maritimes et de
l’article 2 du décret n° 80-567 du 18 Juillet 1980 rela- MM. Foucher, rapp, Moreau, c. du g., Grimaud, av.
tives aux peines applicables en matière de contravention
de police qu’il est défendu, sous peine d’une amende de *************************
150 à 300 F, de jeter des terres ou immondices dans les
eaux des ports et leurs dépendances, mais que ces pre- Vue, enregistrée le 25 Juin 1984, la requête tendant à
scriptions, qui relèvent du juge de la contravention de l’annulation de l’arrêté en date du 26 avril 1984, par
grande voirie, ne sont pas applicables à l’espèce; lequel le préfet, commissaire de la République du
département de la Creuse, a autorisé le Syndicat
Considérant, en effet, que dès lors qu’il s’agit du rejet à Intercommunal de Traitement des Ordures Ménagères
la mer d’hydrocarbures, même à l’intérieur d’un port, (SITOM) de la région de Guéret à établir et exploiter
par un navire relevant de la Convention internationale sur le territoire de la commune de Saint-Léger-Le-
de Londres du 2 novembre 1973 relative à la prévention Guérétois une décharge contrôlée d’ordures
de la pollution par les navires, la loi n° 83-583 du 5 juillet ménagères;
1983 réprimant les pollutions de la mer par les
hydrocarbures, et, en particulier, son article 14, fait ob- Sur la jonction:
stacle à ce que la juridiction administrative prononce en
raison du même fait une condamnation à une amende Considérant que les requêtes n° 83-420 et n°83-421
pour contravention de grande voirie; que, par suite, il y a émanent des mêmes requérants, présentent à juger des
lieu de rejeter, comme portées devant une juridiction questions semblables et ont fait l’objet d’une instruction
incompétente pour en connaître, les conclusions du commune; qu’il y a lieu de les joindre pour qu’elles
préfet, commissaire de la République du département des fassent l’objet d’un seul jugement;
Côtes-du-Nord portant sur l’amende à infliger à M.
Mauffret; Sur la requête n° 83-420 à fin d’annulation:
Considérant, par ailleurs, que si la juridiction adminis- Considérant que les requérants demandent l’annulation
trative reste compétente selon la procédure de contra- de l’arrêté en date du 26 Avril 1984 par lequel le préfet,
vention de grande voirie, en vertu de l’article 14 de la loi Commissaire de la République du département de la
du 5 juillet 1983 pour les dommages causés au domaine Creuse, a autorisé le Syndicat Intercommunal de
public maritime, en revanche l’administration ne saurait, Traitement des Ordures Ménagères de la région de Guéret
comme en l’espèce, se borner à demander le à établir et exploiter sur le territoire de la commune de
remboursement des frais de remise en état sans produire Saint-Léger-Le-Guérétois, au lieu dit «Puy-Aufin», une
d’état justificatif desdits frais; qu’ainsi, ses conclusions décharge contrôlée d’ordures ménagères, constituant une
en ce sens doivent être rejetées; installation classée pour la protection de l’environnement,
repérée sous le n° 322 B. 2 de la nomenclature;
DÉCIDE:
Sur le moyen tiré de l’absence d’indication, dans les vi-
Article premier. - La demande du préfet, commissaire sas, de la date des avis émis par les différents services
de la République du département des Côtes-du-Nord, intéressés:
tendant à la condamnation de M. Pascal Mauffret à une
amende est rejetée comme portée devant une juridiction Considérant que si l’arrêté litigieux se borne à viser les
incompétente pour en connaître. avis des différents services consultés selon la procédure
réglementaire lors de l’instruction, sans indiquer la date
Art. 2. - Le surplus des conclusions du préfet est rejeté. à laquelle ces avis ont été émis, cette absence d’indication
de date n’est pas de nature à entraîner la caducité desdits
avis, ni à entâcher d’illégalité l’arrêté attaqué; par suite,
INSTALLATIONS CLASSÉES ce moyen doit être rejeté;
Décharge d’ordures ménagères. Procédure Sur le moyen tiré de l’erreur de superficie des terrains
d’autorisation, erreurs matérielles n’entraît pas affectés à l’emprise de la décharge:
d’illégalité: violation de circulaires (non). Pouvoirs du
juge de modifier l’arrêté d’autorisation (oui). Considérant que si l’arrêté attaqué en date du 26 avril
459
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
1984 autorisait l’emprise de la décharge sur les parcelles Considérant que, selon les dispositions de l’article 3 de
numérotées au cadastre de la commune de Saint-Léger- la Loi du 19 Juillet 1976: «sont soumises à autorisation
Le-Guérétois, section B 3 n°s 650 á 668 et section C 1 n° préfectorale les installations qui présentent de graves
218, alors que le projet et toute la procédure d’instruction dangers ou inconvénients pour les intérêts visés à l’article
ne portaient que sur les parcelles cadastrées section B 3 premier - c’est-à-dire pour la commodité du voisinage,
n°s 650 à 657 et n° 668 section C 1 n° 218, il résulte de pour la santé, la sécurité, la salubrité publique, la protec-
l’instruction que ledit arrêté comportait une erreur tion de la nature et de l’environnement -, l’autorisation
matérielle dans sa rédaction et que, par un arrêté ne peut être accordée que si ces dangers ou inconvénients
rectificatif du 17 Mai 1984, l’emprise de la décharge peuvent être prévenus par des mesures que spécifie
autorisée a été limitée aux seules parcelles de terrains l’arrêté préfectoral»; qu’en l’espèce, l’arrêté
prévues au projet; que, dès lors, les requérants ne peuvent d’autorisation du 26 Avril 1984, d’une part, a prévu des
se prévaloir de l’erreur matérielle ainsi rectifiée, pour mesures spécifiques de protection et de surveillance des
soutenir que l’arrêté litigieux est entâché d’illégalité; eaux souterraines ausi bien que des eaux de ruissellement,
d’autre part, a prescrit des aménagements particuliers de
Sur le moyen tiré de la violation de la Circulaire du 13 l’ensemble de la décharge elle-même et du lit du ru de
Juin 1969 relative à la protection des massifs forestiers Puy-Aufin qui la traverse afin qu’aucun déversement de
et celle du 9 Mars 1973 relative aux décharges contrôlées ladite décharge ne puisse être à l’origine d’une pollu-
de résidus urbains: tion des eaux; qu’il n’est pas établi qu’en édictant ces
prescriptions dont l’insuffisance n’est pas démontrée,
Considérant, en premier lieu, que la Circulaire du 13 Juin l’autorité compétente ait commis une erreur manifeste
1969 était relative à l’application de l’article 178 du Code d’appréciation; que, dès lors, les requérants ne sont pas
Forestier dans sa rédaction ancienne; que les dispositions fondés, par les moyens qu’ils invoquent, à conclure à
de cet article ne sont plus aujourd’hui en vigueur et ont l’annulation de l’arrêté litigieux; qu’il leur appartiendra
été modifiées par les dispositions de l’article L. 322-2 éventuellement, s’ils s’y croient fondés, de mettre en
du Code Forestier dans sa rédaction nouvelle; que, dès oeuvre les procédures prévues en cas de manquement à
lors, les requérants ne peuvent se prévaloir utilement de ces prescriptions;
la Circulaire susvisée;
Considérant cependant que le Tribunal est, en la matière,
Considérant, en second lieu, que même en admettant que investi du pouvoir de modifier la décision administra-
la Circulaire du 9 Mars 1973 ait pu valablement édicter tive, s’il constate que soit par son objet, soit par ses con-
des prescriptions relatives à l’implantation des décharges ditions, elle ne permet pas d’assurer suffisamment la pro-
contrôlées de résidus urbains et dont les requérants tection des intérêts fondamentaux définis par l’article
peuvent se prévaloir, il n’est pas établi que, ne s’agissant premier de la loi du 19 Juillet 1976; qu’en l’espèce, il
pas en l’espèce de massifs forestiers particulièrement apparaît, ainsi que le reconnaît le Ministre de
exposés au risque d’incendie, une distance minimum de l’Environnement, que certains aménagements doivent
20 m n’ait pas été respectée; qu’ainsi, le moyen tiré de la être apportés à l’autorisation préfectorale afin d’assurer
violation de ladite circulaire ne peut être que rejeté; une protection accrue des eaux et de prévoir une meilleure
réglementation du trafic des véhicules lourds de collecte
Sur le moyen tiré de la violation des arrêtés préfectoraux des ordures ménagères; qu’ainsi, dans le but notamment
relatifs à divers captages d’eaux et de sources: d’éviter tout phénomène d’affouillement des digues
formant les aires de dépôt, par les eaux du ru de Puy-
Considérant que si les arrêtés préfectoraux en date du 15 Aufin en période de crues, il convient de modifier le
Juin 1969, du 25 Février 1975 et du Avril 1979 ont pu, troisième alinéa de l’article 10-2 de l’arrêté d’autorisation
conformément aux dispositions de l’article L.20 du Code selon les dispositions ci-dessous définies au dispositif
de la Santé Publique, déterminer autour des points de du présent jugement et que, d’autre part, dans le but de
captage d’eaux qu’ils autorisaient, des périmètres de pro- préserver la tranquillité qui caractérise les zones
tection à l’intérieur desquels sont interdites ou traversées dans la commune de Saint-Léger-Le-
réglementées toutes implantations d’établissements Guérétois, par les véhicules de collecte des ordures
classés comme insalubres, il ressort des pièces du dos- ménagères, il convient aussi d’ajouter à l’article 10-1 de
sier que la décharge contestée n’est implantée à l’intérieur l’arrêté susvisé les dispositions ci-dessous définies au
d’aucun des périmètres de protection déterminés par les dispositif du présent jugement;
arrêtés susvisés; que, dès lors, le moyen tiré d’une viola-
tion de ces arrêtés est inopérant; Sur la requête n° 83-421 à fin de sursis à exécution:
Sur le moyen tiré d’une violation des règles relatives aux Considérant qu’à la suite de la décision relative à la
établissements classés particulièrement dangereux et du requête à fin d’annulation, la requête à fin de sursis à
risque de pollution des eaux de la Gartempe: exécution de l’arrêté attaqué est devenue sans objet; que,
dès lors, il n’y a pas lieu d’y statuer;
460
FRENCH CASES
PAR CES MOTIFS, DÉDIDE: 1° Annule les articles 3 et 5 du jugement en date du 9
décembre 1976 par lequel le tribunal administratif de
Article premier. - Il n’y a pas lieu de statuer sur la requête Lille a annulé les dispositions de l’article 2 et du
n° 83-421 à fin de sursis à exécution. paragraphe 3 de l’article 3 de l’arrêté du 26 avril 1971
du préfet du Pas-de-Calais autorisant l’extension de
Art. 2. - L’alinéa 3 de l’article 10-2 «Aménagements l’usine Tioxide et modifiant, par les dispositions des ar-
particuliers» de l’arrêté préfectoral du 26 Avril 1984 est ticles susmentionnés, les conditions de rejet dans la mer
ainsi modifié: «Les casiers seront confectionnés par des eaux résiduaires;
creusement de la partie amont et élévation de digues
étanches sur leurs quatre côtés. Ces digues seront ancrées Vu la loi du 19 Décembre 1917 relative aux
à 0,80 m à 1m de profondeur. Elles seront constituées établissements classés comme dangereux, incommodes
avec des matériaux exempts de matières putrescibles et et insalubres;
élevées par couches successives de 0,30 m d’épaisseur
dûment compactées. Ces digues auront une base de 13 Vu le décret n° 64-803 du 1 er avril 1964;
m, une pente de talus de 1, 3/1 et une hauteur de 5,5 m
notamment côtés aval et en bordure du ruisseau. Les Vu l’instruction du Ministre du Commerce et de
talus bordant le ruisseau seront protégés par un l’Industrie en date du 6 juin 1953 relative au rejet des
enrochement serré et jointé au béton de façon à éviter eaux résiduaires des établissements classés;
tout affouillement des talus par les eaux. Cet
enrochement sera constitué sur les talus perpendiculaires Vu la loi du 16 Décembre 1964 relative au régime et à la
au ruisseau, côté amont sur 10 m de part et d’autre du répartition des eaux et à la lutte contre leur pollution;
ruisseau».
Vu le décret n° 73-218 du 23 Février 1973 et les arrêtés
Art.3 - Il est ajouté à l’article 10-1 de l’Arrêté préfectoral interministériels du 13 Mai 1975;
du 26 Avril 1984 l’alinéa suivant: «Les horaires et la
répartition du trafic des véhicules de collecte des ordures Vu le Code des Tribunaux Administratifs;
ménagères seront aménagés sur les zones traverées de la
commune de Saint-Léger-Le-Guérétois, en accord avec Vu l’ordonnance du 31 Juillet 1945 et le décret du 30
le maire de ladite commune, de manière à regrouper les Septembre 1953;
passages dans la journée et éviter tout passage aux heures
d’entrée et de sortie des écoles». Vu la loi du 30 Décembre 1977;
Art. 4. - Le surplus des conclusions de la requête n° 83- Considérant que la requête de la société Tioxide est
420 à fin d’annulation est rejeté. dirigée contre le jugement en date du 9 Décembre 1976
du Tribunal Administratif de Lille en tant qu’il a annulé
Rejet d’effluents industriels. Installtion classée, arrêté les dispositions de l’article 2 et du paragraphe 3 de
d’extention Instruction du 6 juin 1983. Erreur de droit. l’article 3 de l’arrêté du préfet du Pas-de-Calais en date
du 26 Avril 1971 autorisant l’extention de l’usine Tioxide,
CONSEIL D’ÉTAT, 17 janvier 1986 relatives aux modalités de rejet des effluents produits par
le fonctionnement de cette usine, et en tant qu’il a
Société Tioxide c/ Association de défense des marins- condamné la société requérante aux dépens;
pêcheurs de Grand-Fort-Philippe
(Req. n° 05-863) Considérant que, pour annuler des dispositions ci-dessus
analysées, les premiers juges se sont fondés sur le motif
Mlle Langlade, rapp., M. Stirn, c. du g., S.C.P. Peignot, que le préfet a fait, dans les circonstances de l’affaire,
Garreau, av. de la société Tioxide. une inexacte application des dispositions du Chapitre II
de la deuxième partie de l’instruction du Ministre du
************************* Commerce, en date du 6 Juin 1953, en accordant à la
société Tioxide une dérogation aux prescriptions de cette
Vu la requête sommaire et le mémoire complémentaire instruction relative à la neutralisation et au traitement
enregistrés les 20 Janvier 1977 et 2 mars 1977 au des effluents rejetés directement dans le milieu naturel,
Secrétariat du Contentieux du Conseil d’Etat, présentés alors que l’application de ces prescriptions ne se heurtait
pour la Société Tioxide, dont le siège est 1, rue des pas aux difficultés ou impossibilités auxquelles
Garennes, à Calais (Pas-de-Calais), agissant poursuites l’instruction subordonne l’octroi d’une dérogation;
et diligences de son Président-Directeur Général en
exercice, domicilié audit siège, et tendant à ce que le Considérant que, comme le souligne cette instruction,
Conseil d’Etat: les prescriptions qu’elle édicte en ce qui concerne la pro-
tection du milieu naturel contre les rejets d’effluents
461
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
industriels n’ont qu’une valeur indicative pour la dépens de première instance sont mises à la charge de
préparation des arrêtés qu’il appartient au préfet de pren- l’Association de Défense des Marins-pêcheurs de Grand-
dre en application de la loi du 19 Décembre 1917; que le Fort-Philippe.
tribunal ne pouvait, sans commettre d’erreur de droit, se
fonder sur la méconnaissance de ces prescriptions pour
annuler les dispositions de l’arrêté préfectoral du 26 Avril ÉTUDES D’IMPACT
1971 relatives aux rejets en mer;
Mise en exploitation d’une mine d’uranium. Examen
Considérant qu’il appartient au Conseil d’Etat, saisi de sommaire des nuisances créées. Pas d’analyse précise
l’ensemble du litige par l’effet dévolutif de l’appel ni quantifiée du niveau de radioactivité ni des
d’examiner les autres moyens soulevés par l’Association conséquences sur les éequilibres biologiques. Pas
de défense des marins-pêcheurs de Grand-Fort-Philippe d’exposé des mesures de contrôle de la radioactivité.
devant le Tribunal Administratif de Lille à l’appui de ses Insuffisances ayant un caractère substantiel.
conclusions contre les dispositions sus-analysées de
l’arrêté préfectoral du 26 avril 1971; CONSEIL D’ÉTAT, 7 mars 1986
Considérant qu’il ne résulte pas de l’instruction que le Ministre de l’Industrie c/ Cogema et Flepna
préfet du Pas-de-Calais a fait une inexacte appréciation (Req. n° 49-644) [1]
des faits de l’espèce et notamment de la toxicité des ef-
fluents rejetés par l’usine Tioxide, d’une part, en MMM. Guillaume, rapp., Jeanneney, c. du g., S.C.p.
n’exigeant pas de neutralisation, ni de traitement Labbé-Delaporte, av.
préalables au rejet de ces effluents, d’autre part, au cas
où le pH des eaux résiduaires ne serait pas compris entre *************************
5,5 et 8,5 ou entre 5,5 et 9,5 si la neutralisation est faite
à l’aide de chaux, en ne prescrivant pas la mise en oeuvre Recours présenté au nom de l’Etat par le ministre de
dans un délai maximum d’un an, de mesures scientifiques l’Industrie et de la Recherche et tendant à ce que le
et technologiques propres à ramener le pH à l’intérieur Conseil d’Etat:
des limites fixées;
1° Annule le jugement du 1er février 1983 par lequel
Considérant qu’il résulte de tout ce qui précède que la le Tribunal Administratif de Limoges a annulé la décision
demande de l’Association de Défense des Marins- implicite de l’ingénieur du service de l’industrie et des
pêcheurs de Grand-Fort-Philippe doit être rejetée; mines d’Auvergne Limousin approuvant l’ouverture des
travaux d’exploitation de la mine d’uranium de Saint-
Considérant que le jugement attaqué a été rendu avant Sornin-Leulac (Haute-Vienne) par la Cogema;
l’entrée en vigueur de la loi du 30 Décembre 1977; qu’il
y a lieu, dans les circonstances de l’affaire, de mettre à 2° Rejette la demande présentée par la Fédération
la charge de l’Association de Défense des Marins- limousine pour l’étude et la protection de la nature
pêcheurs de Grand-Fort-Philippe les sommes qui ont pu (FLEPNA) au tribunal administratif de Limoges;
être versées à titre de dépens de première instance;
Vu le Code minier;
DÉCIDE:
Vu le décret n° 72-645 du 4 juillet 1972;
Article premier. - Les articles 3 et 5 du jugement du
tribunal administratif de Lille en date du 9 Décembre Vu le décret n° 77-1141 du 12 octobre 1977;
1976 sont annulés.
Vu le Code des tribunaux administratifs;
Art. 2. - Les conclusions de la demande de l’Association
de Défense des Marins-pêcheurs de Grand-Fort-Philippe Vu l’ordonnance du 31 juillet 1945 et le décret du
devant le tribunal administratif de Lille, tendant à 30 septembre 1953;
l’annulation des dispositions de l’article 2 et de l’article
3-3° de l’arrêté du préfet du Pas-de-Calais en date du 26 Vu la loi du 30 décembre 1977;
Avril 1981 et relatives aux rejets d’effluents liquides que
la société Tioxide est autorisée à effectuer en mer sont Considérant qu’aux termes de l’article 2 du décret du 12
rejetées. octobre 1977, «le contenu de l’étude d’impact doit être
en relation avec l’importance des travaux et
Art. 3. - Les sommes qui ont pu être versées à titre de aménagements projetés et avec leurs incidences
462
FRENCH CASES
prévisibles sur l’environnement. L’étude d’impact CONSEIL D’ÉTAT, 11 Avril 1986
présente successivement: 1° Une analyse de l’état ini-
tial du site et de son environnement... 2° Une analyse Ministre de l’Environnement
des effets sur l’environnement... 3° Les raisons pour c/ Société des Produits Chimiques Ugine-Kuhlman
lesquelles, notamment du point de vue des (Req. n° 62-234
préoccupations d’environnement, parmi les partis
envisagés, le projet présenté a été retenu; 4° Les mesures MM. Guillaume, rapp., Dandelot, c. du g., S.C.P.
envisagées par le maître de l’ouvrage ou le pétitionnaire Piwnica-Molinié av.
pour supprimer, réduire et, si possible, compenser les
conséquences dommageables du projet sur *************************
l’environnement...»;
Vu le recours sommaire, enregistré au Secrétariat du
Considérant qu’il résulte des pièces du dossier que l’étude Contentieux du Conseil d’Etat le 3 septembre 1984, et le
d’impact présentée le 5 janvier 1979 par la Cogema à mémoire complémentaire, enregistré le 19 Décembre
l’appui de la déclaration d’ouverture des travaux de la 1984, présentés au nom de l’Etat par le Ministre de
mine d’uranium de Saint-Sornin-Leulac (Haute-Vienne) l’Environnement et tendant à ce que le Conseil d’Etat:
se limite, en ce qui concerne les effets du projet sur
l’environnement, à un examen sommaire des nuisances 1° Annule le jugement du 12 Juillet 1984 par lequel le
créées, sans analyse précise et quantifiée de Tribunal Administratif de Strasbourg a annulé à la
l’accroissement du bruit, du trafic de poids lourds et du demande de la Société de produits chimiques Ugine-
niveau de radioactivité, ni des conséquences de ce Kuhlman, l’arrêté du préfet, Commissaire de la
phénomène sur les équilibres biologiques ainsi que sur République du Haut-Rhin, en date du 17 novembre 1982,
la santé et la salubrité publiques; que les mesures de imposant à cette société de fournir un inventaire des
contrôle et de prévention du risque lié à la radioactivité dépôts de résidus du lindane se rattachant à l’exploitation
ne font l’objet d’aucun exposé détaillé; que, compte tenu de l’usine de Huningue et d’exécuter des travaux de sur-
de l’importance des travaux projetés et de leurs incidences veillance hydrogéologiques;
particulières sur l’environnement, ces insuffisances
revêtent un caractère substantiel; que, dès lors, l’étude 2° Rejette la demande présentée par la Société des
d’impact ne peut être considérée comme satisfaisant aux produits chimiques Ugine-Kuhlman devant le tribunal
conditions posées par les dispositions réglementaires administratif de Strasbourg;
précitées; que, par suite, le ministre du Redéploiement
industriel n’est pas fondé à soutenir que c’est à tort que, Considérant qu’aux termes de l’article premier de la Loi
par le jugement at taqué, le tribunal administratif de du 19 Juillet 1976, «sont soumis aux dispositions de la
Limoges a annulé la décision implicite de l’ingénieur en présente loi les usines, ateliers, dépôts, chantiers, carrières
chef des mines d’Auvergne Limousin autorisant et d’une manière générale les installations exploitées ou
l’ouverture des travaux de la mine de Saint-Sornin- détenues par tout personne physique ou morale, publique
Leulac; ou privée, qui peuvent présenter des dangers ou des
inconvénients soit pour la commodité du voisinage, soit
DÉCIDE: pour la santé, la sécurité, la salubrité publique...»; et
qu’aux termes de l’article 6 de ladite loi: «les conditions
Article premier. - Le recours du ministre du d’installation et d’exploitation jugées indispensables pour
Redéploiement industriel et du Commerce extérieur est la Protection des intérêts mentionnés à l’article premier
rejeté. de la présente loi, les moyens d’analyse et de mesure et
les moyens d’intervention en cas de sinistre sont fixés
DÉCHETS TOXIQUES par l’arrêté d’autorisation et, éventuellement, par des
arrêtés complémentaires pris postérieurement á cette
Pouvoirs du préfet d’imposer des prescriptions autorisation»;
supplémentaires à un établissement industriel ayant cessé
son exploitation. Résidus de lindane demeurés sur le Considérant, d’une part, que les risques de nuisance que
site. Risque de nuisance pour les eaux souterraines. présentaient le dépôt de résidus de lindane constitué sur
Etablissement soumis à autorisation par la loi du 19 le site de l’usine de Huningue (Haut-Rhin) par la Société
décembre 1917. Régime applicable. Loi du 19 juillet des produits chimiques Ugine-Kuhlman avant la
1976. Déchets se rattachant directement à l’activité de fermeture et la vente de cet établissement en 1974 et les
la société de produits chimiques. Obligations de l’ancien dépôts réalisés par les établissements Genet dans le
exploitant. Arrêté préfectoral pouvant valablement département du Haut-Rhin en exécution du contrat
prescrire des travaux de surveillance hydrogéologiques d’évacuation des déchets de lindane passé avec ladite
et l’étude des dépôts. société, doivent être regardés, dans les circonstances de
463
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
l’affaire, comme se rattachant directement à l’activité de gation. Mesure provisoire et conservatoire non soumise
la Société des produits chimiques Ugine-Kuhlman, qui à enquête préalable.
était soumise à autorisation sous le régime de la loi du
19 juillet 1976; que les dispositions du contrat passé en- Légalité des autorisations de rejet. Conditions de fond.
tre la société et les établissements Genet sont Prise en compte des effets à l’étranger. Obligation
inopposables à l’administration; que la société ne peut imposée ni par le droit international ni par le droit in-
davantage invoquer la vente des terrains où se situait son terne.
usine pour s’exonérer des obligations au titre de la
législation sur les installations classées, dès lors que Règles de procédure applicables aux autorisations de
l’acquéreur ne s’est pas substitué à elle en qualité rejet des installations classées. Coordination des
d’exploitant; procédures. Article 12 du décret du 23 février 1973.
Méconnaissance.
Considérant, d’autre part, que l’arrêté attaqué prescrivant
à la Société des Produits Chimiques Ugine-Kuhlman CONSEIL D’ÉTAT, Section 18 Avril 1986
divers travaux de surveillance hydrogéologique ainsi
qu’une étude des dépôts en cause, est intervenu sur le Société “Les mines de potasse d’Alsace”c/province de
fondement de la Loi du 19 Juillet 1976 régissant la po- la Hollande Septentrionale et autres
lice des installations classées et non de la loi du 15 Juillet
1975 relative à l’élimination des déchets; qu’ainsi, le MM.Jhery, rapp., Dandelot, c. du g., S.C.P. Labbé,
moyen tiré de ce que l’administration aurait fait une ap- Delaporte et S.C.P. Nicolay, av.
plication rétroactivement illégale de cette dernière loi
n’est pas de toute façon fondé; *************************
Considérant, enfin, que compte tenu des nuisances Requête de la société «Les mines domaniales de potasse
causées par les dépôts aux eaux souterraines, le préfet d’Alsace» tendant à ce que le Conseil d’Etat:
du Haut-Rhin était fondé à mettre en demeure la société
de prendre les mesures que prescrit son arrêté; 1° Annule le jugement du 27 Juillet 1983 par lequel le
tribunal administratif de Strasbourg, à la demande de la
Considérant qu’il résulte de ce qui précède que c’est à province de la Hollande Septentrionale, de la ville
tort que, par le jugement attaqué, le tribunal administra- d’Amsterdam (Pays-Bas), du Wateringue de Delfand
tif de Strasbourg, faisant droit à la demande de la Société (Pays-Bas), du Wateringue de Rijnland (Pays-Bas), de
des produits chimiques Ugine-Kuhlman, a annulé l’arrêté l’Association de services des eaux (Pays-Bas), de la
du préfet, Commissaire de la République du Haut-Rhin, Fondation Stichting Reinwater (Pays-Bas) et de la Société
du 17 Novembre 1982; de transports de l’eau Rhinkennerland (Pays-Bas), a
annulé:
DÉCIDE:
- D’une part, trois arrêtés n°s 65-118, 65-119 et 6455-
Article premier. - Le jugement du tribunal administra- 450 du préfet du Haut-Rhin du 22 Décembre 1980
tif de Strasbourg du 12 Juillet 1984 est annulé. prorogeant jusqu’au 31 Décembre 1981 la durée de
validité de trois arrêtés préfectoraux antérieurs
Art. 2. - La demande présentée par la Société des produits autorisant la société des Mines de Potasse d’Alsace
chimiques Ugune-Kuhlman devant le tribunal adminis- (M.P.D.A.) à utiliser les ouvrages de rejet dans le
tratif de Strasbourg est rejetée. Rhin et le grand canal d’Alsace, sur le territoire de
la commune de Fessenheim, pour l’évacuation de
divers résidus liquides provenant de leurs installa-
tions industrielles;
POLLUTION TRANSFRONTIERE -
POLLUTION DES EAUX - D’autre part, un arrêté n° 65-823 du 18 Mars 1981
par lequel le préfet du Haut-Rhin a autorisé la
Rejets salins dans le Rhin des mines domaniales de Société des mines de potasse d’Alsace à maintenir
potasse d’Alsace. et utiliser les ouvrages de rejet sur le grand canal
d’Alsace pour l’évacuation de divers résidus liquides
Recevabilité des recours de collectivités publiques et des provenant de ses installations industrielles;
personnes morales étrangères. Intérêt à agir.
2° Rejette les demandes présentées par les collectivités
Autorisation de rejet dans les eaux. Décret du 23 février et organismes mentionnés ci-dessus devant le tribunal
1973. Autorisation délivrée pour une durée limitée. administratif de Strasbourg;
Renouvellement. Régime juridique applicable. Proro-
464
FRENCH CASES
Vu la Constituttion du 4 Octobre 1958 de la demande ne pourraient être menées à bien avant
l’expiration de l’autorisation en cours, peut, pour le mo-
Vu la loi du 16 Décembre 1964, le décret du 23 tif d’intérêt général tiré des graves conséquences d’ordre
Février 1973, l’arrêté du 20 novembre 1979; économique ou social qui résulteraient d’une interrup-
tion dans le fonctionnement d’installations en service,
Vu la loi du 19 Juillet 1976; maintenir, à titre conservatoire, la situation découlant de
l’autorisation en vigueur en prorogeant celle-ci, par une
Vu le décret du 7 Mai 1980; décision prise avant son terme, pendant le temps
nécessaire pour achever l’instruction de la demande;
Vu le décret du 1er Août 1905; qu’une telle décision, qui n’a pas pour objet de statuer
sur la demande et qui ne préjuge en rien le sort qui sera
Vu le traité du 25 Mars 1957; réservé à celle-ci, ne présente le caractère ni d’une modi-
fication de l’autorisation en vigueur, ni d’une nouvelle
Vu le Code des tribunaux administratifs; autorisation, et n’est par suite, pas soumise aux
procédures d’instruction des décisions d’autorisation
Vu l’ordonnance du 31 Juillet 1945 et le décret du fixées par les dispositions combinées du décret du 23
30 Septembre 1953; Février 1973 et du décret du 1er Août 1905;
Vu la loi du 30 Décembre 1977; Considérant que le Préfet du Haut-Rhin, de qui la Société
des Mines de Potasse d’Alsace avait sollicité en Juillet
En ce qui concerne les conclusions à fin de non-lieu 1980 le renouvellement d’autorisations de rejet
du Ministre de l’Environnement: d’effluents dans le grand canal d’Alsace qui venaient à
expiration le 31 Décembre 1980, par une demande dont
Considérant que la circonstance que le préfet du Haut- l’instruction ne pouvait être achevée à cette date, n’a pas,
Rhin a pris, le 5 Septembre 1985, un nouvel arrêté qui en prorogeant pour un an au plus les autorisations en
aurait le même objet que les arrêtés annulés par le cours, par trois arrêtés du 22 Décembre 1980, pris de
jugement attaqué, ne rend pas sans objet la requête de la décision sur la demande de renouvellement dont il
Société des Mines de Potasse d’Alsace dirigée contre ce demeurait saisi, et sur laquelle il a d’ailleurs statué le 3
jugement; qu’ainsi, les conclusions à fin de non-lieu, Mars 1981, mais a adopté une mesure exclusivement
présentées par le Ministre de l’Environnement dans son provisoire et conservatoire qui n’avait pas à être soumise
mémoire en date du 7 Novembre 1985, ne peuvent être à l’enquête préalable prescrite par l’article 9 du décret
accueillies; du 23 Février 1973; que par suite, c’est à tort que, par le
jugement attaqué, le tribunal administratif de Strasbourg
En ce qui concerne la recevabilité des demandes s’est fondé sur la méconnaissance de cette disposition
présentées par la province de la Hollande septentionale réglementaire pour annuler ces trois arrêtés;
et autres devant le tribunal administratif de Strasbourg:
Considérant qu’il appartient au Conseil d’Etat, saisi de
Considérant que la province de la Hollande l’ensemble du litige par l’effet dévolutif de l’appel,
septentrionale, la ville d’Amsterdam et les organismes d’examiner les autres moyens invoqués devant le tribu-
spécialisés Néerlandais, demandeurs devant le tribunal nal administratif par les demandeurs de première in-
administratif de Strasbourg, exploitent les eaux du Rhin stance;
et justifiaient d’un intérêt leur donnant qualité pour
déférer à ce tribunal trois arrêtés en date du 22 Décembre Considérant, en premier lieu, qu’aucune disposition du
1980 et un arrêté en date du 18 Mars 1981 du préfet du droit interne ni aucune stipulation du droit international
Haut-Rhin relatifs aux déversements effectués dans le ne faisait obstacle, à la date à laquelle sont intervenus
Rhin par la Société des Mines de Potasse d’Alsace; que, les arrêtés du 22 Décembre 1980, au principe de la
par suite, cette société n’est pas fondée à soutenir que délivrance d’autorisations de rejets d’effluents, ni, par
les demandes de première instance qui, en outre n’étaient voie de conséquence, à la faculté pour l’administration
pas tardives, étaient irrecevables; d’adopter la mesure conservatoire et provisoire ci-dessus
analysée;
En ce qui concerne les trois arrêtés du 22 Décembre
1980: Considérant, en second lieu, qu’en raison du caractère et
de l’objet de ladite mesure, tous les moyens tirés de la
Considérant que, saisie d’une demande de méconnaissance tant des règles de procédure que des
renouvellement d’une autorisation de rejet d’effluents conditions de fond régissant la délivrance des autoristions
dans les eaux superficielles ou souterraines ou dans les de rejet sont inopérants; qu’il en est ainsi, notamment,
eaux de la mer dans les limites territoriales, l’autorité de la prétendue violation, d’une part, des dispositions
administrative, dans le cas où les procédures d’instruction des décrets du 1er Août 1905, du 23 Février 1973 et du 7
465
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Mai 1980, d’autre part, et en tout état de cause, des en- Considérant qu’il résulte de ce qui précède que la Société
gagements internationaux qui résulteraient de la Con- des Mines de Potasse d’Alsace n’est pas fondée à se
vention de Lucerne du 18 Mai 1889, de l’échange de plaindre de ce que, par le jugement attaqué, le tribunal
lettres franco-néerlandais du 3 Décembre 1976 ou des administratif de Strasbourg a annulé l’arrêté du 18 mars
directives du Conseil des Communautés Européennes en 1981;
date des 16 Juin 1975, 18 Juillet 1978 et 15 Juillet 1980;
DECIDE:
Considérant, en troisième lieu, qu’il résulte de ce qui
précède que le préfet devait se borner, pour prendre les Article premier. - L’article 3 du jugement du tribunal
trois arrêtés attaqués, à apprécier la gravité des administratif de Strasbourg en date du 27 Juillet 1983
conséquences respectives d’une interruption des activités est annulé en tant qu’il annule les arrêtés du Préfet du
de la Société des Mines de Potasse d’Alsace et d’une Haut-Rhin du 22 Décembre 1980.
prorogation, limitée dans le temps, des rejets tels qu’ils
résultaient des autorisations en vigueur; qu’il ne ressort Article 2. - La demande de la province de la Hollande
pas des pièces du dossier qu’il ait commis, dans la con- Septentrionale et autres présentée devant le tribunal ad-
ciliation de tous les intérêts généraux dont il avait à tenir ministratif de Strasbourg et dirigée contre les arrêtés du
compte, une erreur manifeste d’appréciation; préfet du Haut-Rhin du 22 Décembre 1980 et le surplus
des conslusions de la requête de la Société des Mines de
Considérant que, dans ces conditions, la Société des Potasse d’Alsace sont rejetés.
mines de potasse d’Alsace est fondée à soutenir que c’est
à tort que, par le jugement attaqué, le tribunal adminis-
tratif de Strasbourg a annulé les trois arrêtés du préfet du
Hollande Septrionale Haut-Rhin en date du 22 Décembre COUR DE CASSATION (Ch. crim.), 23 mai 1986
1980;
Société des Sciences naturelles Loire-Forez et autres
En ce qui concerne l’arrêté du 18 Mars 1981
MM. Angevin, prés., Suquet, rapp., Méfort, av. gén.;
Considérant que l’article 12 du titre III du Décret précité M° Gauzes, Cautard, av.
du 23 Février 1973 comporte, en ce qui concerne les
établissements classés, des mesures de coordination en- *************************
tre les procédures respectivement applicables au titre de
l’article 9 de ce décret et de la réglementation sur les Sur le moyen unique de cassation commun aux trois
installations classées pour la protection de demandeurs au pourvoi, et pris de la violation de l’article
l’environnement; 434-1 du Code Rural, de l’article 593 du Code de
Procédure Pénale, violation de la loi, manque de base
Considérant que le respect de ces dispositions s’impose légale; « en ce que l’arrêt attaqué a relaxé M. Cravero
à la fois aux demandes de première autorisation et aux des fins de la poursuite, et, en conséquence mis E.D.F.
modifications, lesquelles, en vertu du titre IV du Décret hors de cause; aux motifs que la poursuite est exercée en
du 23 Février 1973, interviennent «dans les formes vertu de l’article 434-1, alinéa premier du Code Rural,
établies au titre III relatif aux premières autorisations»; inséré dans ce Code par l’Ordonnance n° 59-25 du 3
que, par suite, et sans qu’il soit besoin de se prononcer janvier 1959, qui incrimine quiconque aura jeté, déversé
sur le point de savoir si l’Arrêté du 18 Mars 1981 doit, ou laissé écouler dans les cours d’eau, directement ou
en l’espèce, être regardé comme une modification de indirectement, des substances quelconques, dont l’action
l’autorisation antérieure ou une première autorisation, ou les réactions ont détruit le poisson ou nui à sa nutri-
cet arrêté devait être pris conformément aux règles fixées tion, à sa reproduction ou à sa valeur alimentaire; qu’en
par l’article 12 du Décret du 23 Février 1973, qui lui l’espèce, la retenue du barrage de la Beaume fait partie
étaient applicables; qu’il est constant que ces disposi- d’un cours d’eau puisqu’elle communique au moins avec
tions n’ont pas été respectées, alors qu’il résulte des le cours supérieur du Lignon, qui l’alimente; que les
pièces du dossier que les effluents qui ont fait l’objet de boues mêlées de débris végétaux, dont le versement en
la pétition et de l’autorisation de rejet dans le Rhin sont aval, au cours des opérations de vidange, a détruit le
constitués par des rejets provenant d’installations de la poisson, ont été apportées dans cette retenue par la rivière
Société des Mines de Potasse d’Alsace relevant de la elle-même; qu’un tel déversement de produits naturels
législation sur les installations classées, ainsi, d’ailleurs, se trouvant déjà dans le cours d’eau au moment de
que le reconnaît, dans son mémoire en date du 7 l’intervention du prévenu n’entre pas dans les prévisions
Novembre 1985, le Ministre de l’Environnement, après de l’article 434-1 du Code rural; alors que l’article 434-
avoir consulté sur ce point le Conseil Supérieur des In- 1 du Code rural prévoit et réprime le fait de laisser écouler
stallations Classées; que, par suite, l’Arrêté du 18 Mars dans les cours d’eau directement ou indirectement des
1981 a été pris selon une procédure irrégulière;
466
FRENCH CASES
substances quelconques dont l’action ou les réactions ont TRIBUNAL ADMINISTRATIF DE BORDEAUX
détruit le poisson ou nui à sa nutrition, à sa reproduc- 2 octobre 1986
tion; qu’il ressort des énonciations de l’arrêt que le 7 SEPANSO c/Ministère de l’Environnement et du
septembre 1981 l’opération de vidange dont était Cadre de vie
responsable le prévenu a eu pour effet de laisser écouler
dans le cours d’eau « Lignon » en aval du barrage, des *************************
boues qui jusqu’alors étaient retenues par ledit barrage;
que cet écoulement a eu pour effet de détruire une grande Considérant que les reqêtes n° 1638/85et n° 117/85 de
quantité de poissons; qu’en statuant comme elle l’a fait, la SEPANSO présentent à juger des questions
la Cour n’ a pas tiré les conséquences juridiques de ses semblables; qu’il y a lieu de les joindre pour y être statué
propres constatations qui caractérisaient l’infraction par une seule décision;
prévue et réprimée par l’article 434-1 du Code Rural »;
Sur la requête n° 1173/85
Attendu qu’il résulte de l’arrêt attaqué (Lyon, 4° Ch., 22
juin 1983) qu’au cours d’une opération de vidange d’un En ce qui concerne la recevabilité:
barrage exploité par l’Electricité de France (E.D.F.), des
parois boueuses qui formaient le lit de la rivière se sont Considérant que le SEPANSO, Association pour la pro-
effondrées en provoquant un rejet important d’eau tection de la nature a intérêt à agir; qu’il ne résulte pas
chargée de boue et qu’il en est résulté une baisse du taux des pièces du dossier que son président n’avait pas qualité
d’oxygène dans l’eau et la destruction de poissons; pour ester en justice.
Attendu que pour relaxer Cravero, ingénieur de l’E.D.F., En ce qui concerne l’intervention de l’Association
prévenu du délit de pollution de cours d’eau, la cour Aquitaine-Alternatives:
d’appel énonce que les boues ont été apportées dans la
retenue du barrage par la rivière elle-même et « qu’un Considérant que l’Association « Aquitaine-Alternatives»
tel déversement de produits naturels se trouvant déjà dans a intérêt à l’annulation des décisions attaquées, qu’ainsi
le cours d’eau au moment de l’intervention du prévenu son intervention est recevable.
n’entre pas dans les prévisions de l’article 434-1 du Code
Rural »; En ce qui concerne les conclusions à fin d’annulation
des arrêtés du 10 juillet 1984 et du 10 janvier 1985:
Attendu qu’en l’état de ces constatations de fait
souverainement appréciées desquelles il résulte que ne Considérant qu’aux termes de l’article 23 du décret du
sont pas réunis les éléments constitutifs du délit de pol- 21 Septembre 1977: « Dans le cas où l’installation n’est
lution prévu par l’ancient article 434-1 du Code Rural appelée à fonctionner que pendant une durée de moins
auquel a été substitué l’article 407 dudit Code, la cour d’un an dans des délais incomptatibles avec le
d’appel a donné une base légale à sa décision; d’où il déroulement de la procédure normale d’instruction, le
suit que le moyen doit être rejeté; préfet peut accorder, à la demande de l’exploitant... une
autorisation pour une durée de six mois renouvelable une
Et attendu que l’arrêt est régulier en la forme; fois, sans enquête publique...»; que ces dispositions ne
permettent pas à l’autorité administrative d’autoriser
REJETTE LES POURVOIS l’exploitation d’une installation qui est appelée à
fonctionner sur une durée supérieure à un an, et pour
laquelle une procédure d’instruction de la demande est
en cours;
ASSOCIATIONS - INSTALLATION
CLASSÉE Considérant que si l’administration soutient que ces
arrêtés renouvelant pour une période de six mois
Décharge d’ordures ménagères. Autorisation temporaire. l’autorisation d’exploiter la décharge, sont intervenus sur
Installation appelée à fonctionner pour une durée le fondement de l’article 24 de la loi du 19 Juillet 1976,
supérieure à un an. Légalité (non). cette disposition prévoit seulement la mise en demeure
par le préfet d’avoir à régulariser la situation; qu’il n’est
Insallation autorisée malgré les risques grafes de pas contesté que le site d’implantation ne convenait pas
pollutions de la nappe phréatique. Illégalité de l’arrête à une décharge d’ordures ménagères; que dès lors le
préfectoral. Commissaire de la République ne pouvait autoriser
l’exploitation de ladite décharge; qu’il a lieu par suite
Recourse en indemnisation. Dispense d’advocat (non). d’annuler les arrêtés du 10 Juillet 1984 et du 10 Janvier
Dommage écologique. Réparation (non). Remboursement 1985 du Commissaire de la République du Département
des frais d’instance de l’association (non). de la Gironde.
467
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
En ce qui concerne les conclusions à fin d’annulation d’ouvrir droit à indemnité à son profit;
de l’arrêté du 3 Juillet 1985:
Considérant en second lieu que la SEPANSO demande
Considérant qu’aux termes de l’article premier de la loi le remboursement des frais qu’elle a été amenée à en-
du 19 Juillet 1976: «Sont soumis aux dispositions de la gager à l’occasion des différentes instances; que
présente loi les usines, ateliers, dépôts... qui peuvent s’agissant d’instances devant la juridiction administra-
présenter des dangers ou des inconvénients soit pour la tive cette demande ne saurait être accueillie;
commodité du voisinage, soit pour la santé, la sécurité,
la salubrité, soit pour la protection de la nature et de Considérant qu’il résulte de ce qui précède que la
l’environnement»; qu’aux termes de l’article 3 du même SEPANSO n’est pas fondée à demander une indemnité;
texte: «L’autorisation ne peut être accordée que si ces
dangers ou inconvénients peuvent être prévenus par des DÉCIDE:
mesures que spécifie l’arrêté préfectoral»;
Article premier. - L’intervention de l’Association «Aqui-
Considérant qu’il résulte de l’instruction que la décharge taine Alternatives» est admise en ce qui concerne la
d’ordures ménagères de la Brède présente de graves requête n° 1173/85.
risques de pollution chimique de la nappe phréatique;
que dès lors, le commissaire de la République du Art. 2. - Les arrêtés du 10 Juillet 1984, 10 Janvier 1985
département de la Gironde ne pouvait légalement par et 3 Juillet 1985 du Commissaire de la République du
l’arrêté attaqué autoriser l’exploitation de la décharge département de la Gironde sont annulés; le surplus des
de la Brède; que dès lors ledit arrêté doit être annulé. conclusions de la requête n°1173/85 est rejeté.
En ce qui concerne les conclusions tendant à la Art. 3. - L’intervention de l’Association «Aquitaine-Al-
fermeture de la décharge publique de la Brède: ternatives» n’est pas admise en ce qui concerne la requête
n° 1638/85
Considérant que le tribunal ne peut en tout état de cause
ordonner la fermeture de l’établissement litigieux, Art. 4 - La requête n° 1638/85 est rejetée.
laquelle ne peut être prononcée que par le Commissaire
de la République. Arrêté de protection de biotope. Création. Consultation
de la chambre départementale d’agriculture. Absence.
Sur la requête n° 1638/85 Vice de forme substantiel. Annulation (2 e espèce).
En ce qui concerne l’intervention de l’Association «
Aquitaine-Alternatives»:
TRIBUNAL ADMINISTRATIF DE POITIERS,
Considérant qu’aux termes de l’article R-78 du Code des 26 Novembre 1986
Tribunaux Administratifs: « Les recours et les mémoires
doivent être présentés et signés par un avocat au Conseil Association des Deux-Sèvres d’Etude et d’Action pour
d’Etat et à la Cour de Cassation, soit par un avocat inscrit la Sauvegarde de la Nature et de l’Environnement
au barreau, soit par un avoué en exercice dans le ressort (A.S.N.A.T.E.)
du Tribunal Administratif intéressé»;
MM. Bourderioux, rapp., de Sevin, c. du g., Me Roche,
Considérant que l’intervention de l’Association «Aqui- av.
taine-Alternatives» est présentée au soutien de conclu-
sions tendant à la condamnation de l’Etat à verser à la *************************
SEPANSO une indemnité de 70 000 F; qu’un tel litige
n’est pas au nombre de ceux qui sont dispensés du 1° Vu, enregistrée le 25 Juin 1986, la requête présentée
ministère d’avocat par l’article R. 79 du même code; que pour l’A. S. N. A. T. E. tendant à annulation de l’arrêté
dès lors l’intervention de l’Association «Aquitaine-Al- en date du 25 Avril 1986 du préfet, commissaire de la
ternatives» ne saurait être admise. République des Deux-Sèvres, portant protection d’un
biotope sur le territoire des communes de Gourgé,
En ce qui concerne la demande d’indemnité: Lageon, Louin et Saint-Loup-Lamairé, constitué par
l’emprise de la retenue d’eau du Cébron et de ses rives;
Considérant en premier lieu que la SEPANSO ne justifie et la requête présentée pour l’A.S.N.A.T.E. et tendant à
pas d’un préjudice matériel et n’invoque par ailleurs ce que le tribunal ordonne qu’il soit sursis à l’exécution
qu’un «dommage écologique» qui n’est pas susceptible de la décision visée ci-dessus;
468
FRENCH CASES
Sans qu’il soit besoin d’examiner les autres moyens de CONSEIL D’ÉTAT, 16 janvier 1987
la requête:
Commune de Gif-sur Yvette
Considérant qu’en vertu des dispositions du premier (Req. n° 55-711)
alinéa de l’article 4 du décret n° 77-1295 du 25 Novembre
1977, les mesures de conservation de biotopes destinées Mme Lenoir, rapp., M. Stirn, c. du g., M e Odent, av.
à prévenir la disparition de certaines espèces animales
peuvent donner lieu à des arrêtés préfectoraux; qu’aux *************************
termes des dispositions du deuxième alinéa dudit article
4: «Les arrêtés préfectoraux mentionnés à l’alinéa Vu la requête sommaire et le mémoire complémentaire
précédent sont pris après avis de la commission présentés pour la commune de Gif-Sur-Yvette, tendant à
départementale des sites siégeant en formation de pro- ce que le Conseil d’Etat:
tection de la nature ainsi que de la chambre
départementale d’agriculture»; 1° Annule le jugement du 21 Juillet 1983 du Tribunal
Administratif de Versailles en tant qu’il a annulé, à la
Considérant qu’en l’espèce il est constant que l’arrêté demande de Mmes Huet, Joly et Héloir, l’arrêté du 25
préfectoral, en date du 25 avril 1986, portant protection Avril 1980 du préfet de l’Essonne portant déclaration
d’un biotope constitué par l’emprise de la retenue d’eau d’utilité publique de l’acquisition d’une parcelle destinée
du Cébron et de ses rives n’a pas été précédé de la con- au dédoublement de la rue Amodru, située au centre de
sultation de la chambre départementale d’agriculture; que la commune;
cette irrégularité constitue un vice de forme substantiel
de nature à entacher d’illégalité l’arrêté attaqué; 2° Rejette les conclusions de la demande de Mmes Huet,
Joly et Héloir devant le Tribunal Administratif de Ver-
Considérant que l’administration n’établit pas l’existence sailles tendant à l’annulation de cet arrêté;
de circonstances exceptionnelles ayant pour effet de la
dispenser d’accomplir la consultation susmentionnée; Considérant qu’aux termes du deuxième alinéa de
l’article 2 de la Loi du 10 Juillet 1976 relative à la pro-
Considérant qu’il résulte de ce qui précède que tection de la nature: «Les études préalables à la réalisation
l’association reqérante est fondée à soutenir que l’arrêté d’aménagements ou d’ouvrages qui, par l’importance de
attaqué est entaché d’illégalité; leurs dimensions ou leurs incidences sur le milieu naturel,
peuvent porter atteinte à ce dernier doivent comporter
Sur la requête n° 738-86/CG: une étude d’impact permettant d’en apprécier les
conséquences»; que le premier alinéa de l’article 3-B du
Considérant que le présent jugement rend sans objet les Décret du 12 Octobre 1977, pris pour l’application de
conclusions aux fins qu’il soit sursis à l’exécution de la l’article 2 précité de la Loi du 10 Juillet 1976, dispense
décision attaquée; qu’il n’y a, dès lors, pas lieu d’y de la procédure de l’étude d’impact «tous aménagements,
statuer; ouvrages et travaux dont le coût total est inférieur à six
millions de francs. En cas de réalisation fractionnée, le
DÉCIDE: montant à retenir est celui du programme général»;
Article premier. - L’intervention de la Fédération Considérant que l’ensemble des opérations de voirie et
Française des sociétés de Protection de la nature est d’urbanisme destinées à assurer la rénovation du centre
admise. urbain de Gif-sur-Yvette et faisant l’objet du contrat
régional passé entre cette commune et le Conseil
Article 2. - L’arrêté en date du 25 avril 1986 du Régional de l’Ile-de-France, dont le coût global s’élève
commissaire de la République du département des Deux- à 18 149 886 F, se compose d’une série d’opérations
Sèvres est annulé. indépendantes les unes des autres et dont chacune a sa
finalité propre et ne peut être regardée comme un seul
Article 3. - Il n’y a lieu de statuer sur la requête n° 738- programme d’aménagements, d’ouvrages et de travaux
86/CG. au sens des dispositions précitées du décret du 12 Octobre
1977; qu’il suit de là que, pour l’application de ces dis-
ÉTUDE D’IMPACT positions, il convient de prendre en compte non le
montant cumulé des opérations inscrites au programme,
Champ d’application, Coût financier. Programme mais le coût de chacune de celles qui forment un ensem-
général. Notion. Programme de rénovation urbain. ble distinct d’aménagement et de travaux; qu’il ressort
Opérations de voirie. Opérations distinctes. Coût des pièces du dossier que l’ensemble des opérations que
inférieur au seuil de 6 millions. Nécessité d’une étude forment le doublement de la rue Amodru, l’aménagement
d’impact préalable à la D.U.P. Non. de la rue existante et celui de ses abords, constitue un
469
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
programme d’opérations distinct d’autres opérations préfet de l’Essonne du 25 Avril 1980, sont rejetées.
prévues au plan général de rénovation du centre de la
ville, telles que la construction d’une salle de réunion, Art. 3. - La présente décision sera notifiée à la Com-
d’un marché public et de parcs de stationnement pour mune de Gif-sur-Yvette, à Mmes Huet, Joly et Héloir et
les véhicules, dont la réalisation n’est pas rendue au Ministre de l’Intérieur.
nécessaire par l’aménagement de la rue Amodru; que le
coût total de l’aménagement, de cette rue et de ces abords,
pour l’exécution duquel a été pris l’arrêté préfectoral
déclarant l’utilité publique de ces travaux, est évalué à 3 INSTALLATIONS CLASSÉES
300 000 F; que cette opération n’est donc pas soumise à
la procédure d’étude d’impact; que c’est dès lors à tort Dépôt de ferraille. Exploitation sans autorisation. Rejet
que le Tribunal Administratif de Versailles s’est fondé de la demande de régularisation et mise en demeure de
sur la méconnaissance des dispositions de l’article 2 de cesser l’activité. Décision devenue définitive. Refus du
la loi du 10 Juillet 1976 pour annuler l’arrêté attaqué; préfet de revenir sur sa décision. Droits acquis de
l’exploitant. Moyen inopérant. Nuisances rendant
Considérant toutefois qu’il appartient au Conseil d’Etat, toujours la fermeture nécessaire. Légalité du refus.
saisi de l’ensemble du litige par l’effet dévolutif de
l’appel, d’examiner les autres moyens soulevés par Mmes CONSEIL D’ÉTAT, 20 février 1987
Huet, Joly et Héloir devant le tribunal administratif de
Versailles; M. Chevalerias (Req. n° 70-051)
Considérant, en premier lieu, que la procédure de MM. Arnoult, rapp., Guillaume, c.du g., Me Goutet,
déclaration d’utilité publique et celle relative aux av.
autorisations de défrichement prévue au Code forestier
sont deux procédures administratives distinctes et *************************
indépendantes; que par suite, la légalité d’une déclaration
d’utilité publique n’est pas subordonnée à l’intervention Vu la requête le 1 er Juillet 1985 au Secrétariat du
préalable d’une autorisation de déboiser; Contentieux du Conseil d’Etat, présentée pour M. Jean
chevalerias, et tendant à ce que le Conseil d’Etat:
Considérant, en second lieu, que si une opération ne peut
légalement être déclarée d’utilité publique que si les 1° Annule jugement du 28 Mars 1985 par lequel le Tri-
atteintes à la propriété privée, le coût financier et bunal Administratif de Clermont-Ferrand a rejeté sa
éventuellement, les inconvénients d’ordre social ou demande dirigée contre la décision du 28 Mars 1984 par
l’atteinte à d’autres intérêts publics qu’elle comporte ne laquelle le préfet, Commissaire de la République du Puy-
sont pas excessifs eu égard à l’intérêt qu’elle présente, il de-Dôme, a refusé de revenir sur la décision de fermeture
ressort des pièces du dossier que l’opération sur laquelle du dépôt de ferraille exploité pour M. Chevalerias, et
a porté la déclaration d’utilité publique attaquée ne qui a fait l’objet des arrêtés préfectoraux des 3 Juillet et
compromet pas la sécurité des riverains et que les 6 Août 1979 donnant à l’intéressé jusqu’au 1er Octobre
nuissances qu’elle entraîne pour ceux-ci ne sont pas 1979 pour cesser son activité;
excessives eu égard à l’intérêt de cette opération destinéee
à améliorer la circulation urbaine; 2° Annule pour excès de pouvoir cette décision;
Considérant qu’il résulte de tout ce qui précède que, sans Considérant que, par un arrêté en date du 7 Décembre
qu’il soit besoin d’examiner la recevabilité de la demande 1976, le préfet commissaire de la République du Puy-
de Mmes Huet, Joly et Héloir devant le tribunal admin- de-Dôme, a refusé à M. Chevalerias l’autorisation qu’il
istratif, la commune de Gif-sur-Yvette est fondée à sollicitait, à titre de régularisation, d’exploiter une in-
soutenir que c’est à tort que le tribunal administratif a stallation de récupération de matériaux au lieu dit «Le
annulé l’arrêté du préfet de l’Essonne du 25 Avril 1980; Chambon», dans la commune de Thiers, et lui a accordé
un délai de deux ans pour cesser son activité; que ce délai
DÉCIDE: été prorogé jusqu’au 1 er octobre 1979 par deux arrêtés
les 3 Juillet et 6 Août 1979; que, par la décision attaquée,
Article premier. - L’article 2 du jugement du Tribunal le préfet a refusé de revenir sur la décision ordonnant à
Administratif de Versailles en date du 21 Juillet 1983 est M. Chevalerias de cesser con activité;
annulé.
Considérant qu’aux termes de l’article 24 de la Loi n°
Art. 2. - Les conclusions de la demande présentées par 76-663 du 19 Juillet 1976 «Lorsqu’une installation
Mmes Huet, Joly et Héloir devant le Tribunal Adminis- classée est exploitée sans avoir fait l’objet de...
tratif de Versailles, tendant à l’annulation de l’arrêté du l’autorisation requise par la présente loi, le préfet met
470
FRENCH CASES
l’exploitation en demeure de régulariser sa situation... André Sabadel fait l’objet des procédures suivantes:
en déposant... une demande d’autorisation. Si sa
demande d’autorisation est rejetée, le préfet peut, en cas N°s 1756, 1757, 1758, 3395, 3343-86 du Parquet comme
de nécessité, ordonner la fermeture ou la suppression de prévenu d’avoir, à Chambon-le-Château (48), les 14
l’installation...» ; Mars, 24 Avril, 28 mai, 18 Septembre et 19 Novembre
1986, jeté, déversé ou laissé écouler dans les eaux de la
Considérant, d’une part, que l’arrêté préfectoral sus- rivière Ance, directement ou indirectement, des sub-
analysé du 7 Décembre 1976 étant devenu définitif, le stances quelconques dont l’action ou les réactions ont
moyen de M. Chevalerias , tiré de ce qu’ayant des droits détruit le poisson ou nui à sa nutrition, à sa reproduction
acquis à exploiter son installation sans autorisation, le ou à sa valeur alimentaire; fait prévu et réprimé par les
préfet du Puy-de-Dôme aurait dû revenir sur la décision articles 407 et 409 du Code rural;
de cessation d’activité prise à son encontre ne saurait, en
tout état de cause, être accueilli; N° 677-87 du Parquet comme prévenu d’avoir à
Chambon-le-Château, le 11 Février 1987, jeté, déversé
Considérant, d’autre part, qu’il résulte de l’instruction ou laissé écouler dans les eaux de la rivière Ance,
que l’installation de M. Chevalerias entraîne des nui- directement ou indirectement, des substances
sances qui rendent toujours nécessaire sa fermeture; que, quelconques dont l’action ou les réactions ont détruit le
dès lors, les circonstances alléguées par le requérant, poisson ou nui à sa nutrition, à sa reproduction ou à sa
tirées de l’impossibilité matérielle dans laquelle il se valeur alimentaire; fait prévu et réprimé par les articles
trouve d’effectuer son déménagement et des incidences 407 et 409 du Code rural;
économiques et sociales que celui-ci entraînerait étant
inopérantes, M. Chevalerias n’est pas fondé à soutenir N° 676, 819-87 du Parquet comme prévenu d’avoir à
que c’est à tort que, par le jugement attaqué, le Tribunal Chambon-le-Château, le Château (48), les 7 et 21 Mars
Administratif de Clermont-Ferrand a rejeté sa demande; 1987, jeté, déversé ou laissé écouler dans les eaux de la
rivière Ance, directement ou indirectement, des sub-
DÉCIDE: stances quelconques dont l’action ou les réactions ont
détruit le poisson ou nui à sa nutrition, à sa reproduction
Article premier. - La requête de M. Chevalerias est ou à sa valeur alimentaire; fait prévu et réprimé par les
rejetée. articles 407 et 409 du Code rural;
Article 2. - La présente décision sera notifiée à M. Il y a lieu d’ordonner la jonction des trois procédures et
Chevalerias et au Ministre Délégué auprès du Ministre de statuer par un seul et même jugement;
de l’Equipement, du Logement, de l’Aménagement du
Territoire et des Transports, chargé de l’Environnement. Sur les faits constatés le 14 Mars 1986
POLLUTION DES EAUX André Sabadel reconnaît les faits qui lui sont reprochés
et soutient que les causes de la pollution sont purement
Rejet accidentel. Acide chlorydrique. - Destruction accidentelles. Il est établi qu’à la suite d’une rupture de
totale de la faune piscicole. - Déversement chronique vanne d’une cuve, 3.000 litres d’acide chlorhydrique on
de lacto-sérum. - Dégradation de la flore et de la faune. été évacués, provoquant une destruction totale de la faune
- Infractions constituées à l’article 407 nouveau du Code piscicole dans l’Ance du Sud, sur une distance de 10
rural. km;
Sanctions. Article 409 du Code pénal. Amendes. Sur les faits constatés les 24 Avril, 28 mai, 18 Septembre
Emprisonnement avec sursis. Peines complémentaires. et 19 Novembre 1986, 11 Février, 7 Mars et 21 Mars
Obligation de traiter les eaux usées. Astreinte. Article 1987:
463 du Code rural.
André Sabadel soutient que les éléments de l’infraction
Parties civiles. Recevabilité. Préjudice. Evaluation. ne sont pas réunis, aucune mortalité de poisson, aucune
atteinte à la flore n’ayant été constatée; de plus, sauf en
TRIBUNAL CORRECTIONNEL MENDE, ce qui concerne les faits du 21 Mars 1987, les résultats
12 Août 1987 des prélèvements effectués par l’administration n’ont pas
été communiqués, si bien qu’un doute subsiste sur
************************* l’origine des pollutions et la seule analyse communiquée
fait apparaître des quantités infimes d’azote nitrique,
En ce jour 16 Juillet 1987, l’audience étant toujours d’azote nitreux et d’azote total;
publique, le Tribunal, vidant son délibéré, a statué en
ces termes: Les procès-verbaux versés au dossier font ressortir un
471
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
rejet chronique de lacto-sérum à la rivière par la laiterie F sur la base de l’article 475-1 du Code de procédure
Sabadel. Or, le lacto-sérum est une substance toxique pénale;
qui nuit à la flore aquatique;
2. La Fédération de Pêche de la Lozère, les sommes de
Un déversement continuel ou important provoque en effet 17 707,18F en réparation du dommage subi et 1 000 F
une carence en oxygène et par conséquent asphyxie la en application de l’article 475-1 du Code de procédure
faune et la flore; pénale;
La dégradation de la flore ou de la faune aquatique 3. T.O.S., toutes causes de préjudices confondues, la
consommant le délit de pollution, André Sabadel doit somme de 2 000 F;
être déclaré coupable de l’ensemble des faits qui lui sont
reprochés; PAR CES MOTIFS:
Sur la sanction: Le Tribunal, statuant publiquement, contradictoirement
et en premier ressort, après en avoir délibéré
Compte tenu de la gravité des faits, il convient de conformément à la loi:
condamner André Sabadel à 8 000 F d’amende et un mois
d’emprisonnement avec sursis, un extrait du jugement Ordonne la jonction des procédures 1756, 1757, 1758,
devant être inséré aux frais du condamné dans le journal 3395, 3543-86, 677-87, 676, 819-87 du Parquet;
«La lozère nouvelle»;
Déclare André Sabadel coupable du délit de pollution;
En outre, en application de l’article 409 du Code rural,
André Sabadel devra mettre en oeuvre les En répression, le condamne à la peine de huit mille francs
investissements permettant un traitement des eaux usées d’amende (8 000 F) et un mois d’emprisonnement;
de la laiterie, dans un délai de un an, les travaux devant
être effectués en relation avec l’agence du bassin Loire- Dit toutefois qu’il sera sursis à l’exécution de la peine
Bretagne. d’emprisonnement dans les conditions des articles 734
et 735 du Code de procédure pénale;
Sur les constitutions de parties civiles:
Ordonne la publication, par extrait, du présent jugement
Se constituent parties civiles: aux frais d’André Sabadel sans que ceux-ci ne dépassent
la somme de deux mille francs, dans le journal «La
- La Fédération de pêche de la Haute-Loire qui Lozère nouvelle»;
demande les sommes de: 86 712,94F en réparation
de son préjudice, 25 000 F à titre de dommages- Condamne André Sabadel à mettre en place un dispositif
intérêts, lesdites sommes avec intérêts de droit, 6 de traitement des rejets, en relation avec l’agence du
000 F sur la base de l’article 475- 1 du Code de bassin Loire-Bretagne, dans un délai de un an à compter
Procédure Pénale; du présent jugement et, passé ce délai, sous astreinte de
deux cent cinquante francs par jour de retard;
- La Fédération départementale des Associations de
pêche et de pisciculture de la Lozère qui sollicite Reçoit les constitutions de parties civiles de la Fédération
les sommes de: 17 707,18 F avec intérêts au taux de pêche de la Haute-Loire, de la Fédération de pêche et
légal et 4 000 F sur la base de l’article 475-1 du de pisciculture de la Lozère et de l’Association nationale
Code de Procédure Pénale; agréée de protection des salmonidés, dite T.O.S.;
- L’Association nationale agréée de protection des Condamne André Sabadel à payer:
salmonidés, dite T.O.S, qui demande les sommes
de 5 000 F pour le préjudice matériel et 3 000 F - A la Fédération de pêche de Haute-Loire la somme
pour le préjudice moral; de quatre-vingt -six mille sept cent douze francs et
quatre-vingt-quatorze centimes (86 712,94 f) en
Les constitutions de partie civile sont recevables; réparation du dommage subi et mille francs (1 000
F) sur la base de l’article 475-1 du Code de
Au vu du rapport de Christian Romieux, garde-chef procédure pénale;
commissionné de l’administration, il convient d’allouer
à: - A la Fédération de pêche et de pisciculture de la
Lozère, la somme de dix-sept mille sept cent sept
1. La Fédération de Pêche de Haute-Loire: les sommes francs et dix-huit centimes (17 707,18 F) en
de 86 712,94 F en réparation du préjudice subi et 1 000 réparation du dommage subi et mille francs (1 000
472
FRENCH CASES
F) en application de l’article 475-1 du Code de rejet d’effluents provenant des installations nucléaires
procédure pénale; de base et des installations nucléaires implantées sur le
même site;
- A T.O.S., la somme de deux mille francs (2 000 F),
toutes causes de préjudices confondues. Vu le décret No.74 1181 du 31 Décembre 1974 relatif
aux rejets d’effluents radioactifs liquides provenant
CONSEIL D’ETAT. SECTION DU CONTENTIEUX. d’installations nucléaires;
5ÈME ET 3ÈME SOUS-SECTIONS. MINISTERE
DE L’INDUSTRIE, DES POSTES ET TELECOM- Vu le décret du 11 Octobre 1978 déclarant d’utilité
MUNICATIONS ET DU TOURISME c/L’Etat publique les travaux de construction de la centrale
30 juin 1989 N 89.883. nucléaire de Cattenom et de ses installations annexes;
Cette décision sera publiée au Recueil LEBON Vu les décrets du 24 Juin 1982 et du 29 Février 1984
autorisant la création par Electricité de France de tranches
************************* de la centrale nucléaire de Cattenom;
Sur le rapport de la 5ème sous-section Vu les arrêtés du 21 Octobre 1988 retirant l’autorisation
de rejet d’effluents radioactifs liquides et gazeux par le
Vu le recours et le mémoire complémentaire du centre de production nucléaire de Cattenom (Tranches 1
MINISTRE DE L’INDUSTRIE, DES P ET T ET DU et 2);
TOURISME enregistrés les 28 juillet 1987 et 29
Septembre 1987 au Contentieux du Conseil d’Etat, et Vu le décret No. 88-907 du 2 Septembre 1988;
tendant à ce que le Conseil d’Etat:
Vu le Code des tribunaux administratifs et des cours
1) annule le judgement du 11 juin 1987, par lequel le administratives d’appel;
tribunal administratif de Strasbourg a d’une part, annulé
les arretés du 21 février 1986 relatifs aux autorisations Vu le l’ordonnance No. 45-1708 du 31 Juillet 1945, le
de rejets radio-actifs gazeux et liquides par le centre de décret No. 53-934 du 30 Septembre 1953 et et la loi No.
production nucléaire et, de Cattenom en tant qu’ils 87-1127 du 31 Décembre 1987 ;
concernent les tranches 3 et 4 de la Centrale nucléaire et
d’autre part, sursis à statuer sur le surplus des conclu- Vu le décret No. 88-907 du 2 Septembre 1988 portant
sions des demandes qui lui étaient présentées jusqu’à ce diverses mesures relatives à la procédure administrative
que la cour de justice des communautés européennes se contentieuse, et notamment sont article 1er ;
soit prononcée sur la question de savoir si l’article 37
du traité du 25 mars 1957 instituant la communauté Sur les conclusions tendant à l’annulation de l’article 3
européenne de l’énergie atomique exige que la commis- du jugement attaqué,
sion des communautés européennes soit saisie avant que
les rejets d’effluents radio-actifs par les centres de pro- Considérant que le MINISTRE DE L’INDUSTRIE DES
duction nucléaire soient autorisés par les autorités P ET T ET DU TOURISME s’est désisté de ses conclu-
compétentes des Etats membres, lorsqu’une procédure sions dirigées contre l’article 3 du jugement par lequel
d’autorisation préalable est instituée, ou avant qu’ils le tribunal administratif de Strasbourg a sursis à statuer
soient effectués par les centres de production nucléaire sur la demande tendant à l’annulation des arrêtés
et a renvoyé à la cour de justice des communautés interministériels du 21 Février 1986 autorisant le rejet
européennes la question relative à l’interprétation de ces d’effluents radioactifs gazeux et liquide par la centrale
dispositions, nucléaire de Cattenom en tant que ces arrêtés concernent
les tranches 1 et 2 de cette centrale jusqu’à ce que la
2) rejette les demandes présentées devant le tribunal ad- cour de justice des communautés européennes se soit
ministratif de Strasbourg, prononcée sur l’interprétation de l’article 37 du traité du
25 Mars 1957 instituant la communauté européenne de
Vu la loi du 2 Août 1961 relative à la lutte contre les l’énergie atomique ; que ce désistement est pur et simple
pollutions atmosphériques et les odeurs, et portant modi- ; que rien ne s’oppose à ce qu’il soit donné acte ;
fication de la loi du 19 Décembre 1917, et notamment
son article 8; Sur les conclusions dirigées contre l’article 2 du jugement
attaqué par lequel le tribunal administratif de Strasbourg
Vu le décret No.63-228 du 11 Décembre 1963 relatif a annulé les arrêtés du 21 Février 1986 en tant qu’ils
aux installations nucléaires; concernent les tranches 3 et 4 de la centrale nucléaire de
Cattenom ;
Vu le décret No.77-945 du 6 Novembre 1974 relatif au
473
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Considérant que les décrets autorisant la création de centrale ;
tranches d’une centrale nucléaire n’ont pas le caractère
d’un acte réglementaire dont l’illégalité pourrait être Considérant que les décrets du 24 Juin 1982 et du 29
invoquée, par voie d’exception, après l’expiration des Février 1984 autorisant la création, par Electricité de
délais de recours contentieux à l’appui d’un recours dirigé France de tranches de la centrale nucléaire de Cattenom,
contre des actes relatifs au fonctionnement de cette
*****
474
FRENCH CASES
Section 9
Friends of the Old
Man River
475
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
476
JURISPRUDENCE FROM CANADA
FRIENDS OF THE OLDMAN RIVER v. CANADA
SA MAJESTÉ LA REINE DU CHEF DE L’ALBERTA, REPRÉSENTÉE PAR LE MINISTRE
DE TRAVAUX PUBLICS, DES APPROVISIONNEMENTS ET DES SERVICES
APPELANTE
ET;
LE MINISTRE DES TRANSPORTS ET LE MINISTRE DES PÊCHES ET DES OCÉANS
APPELANTS
C.
FRIENDS OF THE OLDMAN RIVER SOCIETY INTIMÉE
ET
LE PROCUREUR GÉNÉRAL DU QUÉBEC, LE PROCUREUR GÉNÉRAL DU
NOUVEAU-BRUNSWICK, LE PROCUREUR GÉNÉRAL DE LA COLOMBIE-
BRITANNIQUE, LE PROCUREUR GÉNÉRAL DE LA SASKATCHEWAN, LE
PROCUREUR GÉNÉRAL DE TERRE-NEUVE, LE MINISTRE DE LA JUSTICE DES
TERRITOIRES DU NORD-OUEST, LA FRATERNITÉ DES INDIECES DU CANADA/
L’ASSEMBLÉE DES PREMIÈRES NATIONS, LA NATION DÉNÉE ET L’ASSOCIATION
DES MÉTIS DES TERRITOIRES DU NORD-OUEST, LE CONSEIL NATIONAL DES
AUTOCHTONES DU CANADA (ALBERTA), LE SIERRA LEGAL DEFENCE FUND,
L’ASSOCIATION CANADIENNE DU DROIT DE L’ENVIRONNEMENT, LE SIERRA
CLUB OF WESTERN CANADA, SURVIE CULTURELLE (CANADA), LES AMIS DE LA
TERRE ET L’ALBERTA WILDERNESS ASSOCIATION INTERVENANTS
RÊPERTORIÊ: FRIENDS OF THE OLDMAN RIVER SOCIETY c. CANADA
(MINISTRE DES TRANSPORTS)
No du greffe: 21890.
1991: 19, 20 février; 1992: 23 janvier.
Présents: Le juge en chef Lamer et les juges La Forest, d’environnement, DORS/84-467.
L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin,
Stevenson et Lacobocci. Droit de l’environnement - Évaluation environnementale
- validité législative du décret fédéral sur les lignes
directrices en matière d’environnement - Le décret sur
EN APPEL DE LA COUR D’APPEL FEDERALE les lignes directrices est-il autorisé par l’art. 6 de la Loi
sur le ministère de l’Environnement - Le décret sur les
Droit constitutional - Répartition des pouvoirs législatifs lignes directrices est-il incompatible avec la Loi sur la
- Environnement - Êvaluation environnementale - Les protection des eaux navigables? - Loi sur le ministère de
lignes directrices fédérales en matière d’environnement l’Environnement, L.R.C. (1985), ch. E-10, art. 6 . - Loi
sont-elles intra vires du Parlement? - Loi constitutionnelle sur la protection des eaux navigables, L.R.C. (1985), ch.
de 1867, art. 91, 92 - Décret sur les lignes directrices N.22, art. 5, 6 - Décret sur les lignes directrices visant le
visant le processus d’évaluation et d’examen en matière processus d’évaluation et d’examen en matière
477
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
d’environnement, DORS/84-467. organismes fédéraux qui exercent un pouvoir de décision
à l’égard d’une proposition (c’est-à-dire une entreprise
Droit de l’environnement - Évaluation environnementale ou activité) susceptible d’entrainer des répercussions
- Applicabilité du décret fédéral sur les lignes directrices environnementales sur une question de compétence
en matière d’environnement - Construction d’un barrage fédérale, qu’ils procèdent à un examen initial de cette
par l’Alberta sur la rivière Oldman - Barrage touchant proposition afin de déterminer si elle peut éventuellemnt
des domaines de compétence fédérale comme les eaux comporter des effets défavorables sur l’environnement.
navigables et les pêches - Le décret sur les lignes La province a elle-même procédé au cours des années à
directrices s’applique-t-il seulement aux nouveaux d’importantes études environnementales qui ont donné
projets fédéraux - Le ministre de Transports et le ministre lieu à des consultations publiques, notamment auprès
des Pêches et des Océans sont-ils tenus de se conformer des bandes indiennes et des groupes environnementaux,
au décret sur les lignes directrices? - Loi sur le ministère et, en septembre 1987, avait obtenu du ministre des
de l’Environnement, L.R.C. (1985), ch. E-10, art. 4(1)a), Transports une approbation de l’ouvrage en vertu de
5a)(ii), 6 - Décret sur les lignes directrices visant le l’art. 5 de la Loi sur la protection des eaux navigables.
processus d’évaluation et d’examen en matière Cette disposition prévoit qu’il est interdit de construire
d’environnement, DORS/84-467, art. 2 «proposition», un ouvrage dans les eaux navigables à moins qu’il n’ait
«ministère responsable», 6 - Loi sur la protection des préalablement été approuvé par le ministre. Dans
eaux navigables, L.R.C. (1985), ch. N-22, art. 5 - Loi l’évaluation de la demande de l’Alberta, le ministre n’a
sur les pêches, L.R.C. (1985), ch. F-14, art. 35, 37. examiné que l’incidence du projet sur la navigation et
aucune évaluation n’a été faite en vertu du Décret sur
Couronne - Immunité - Provinces - La Couronne du chef les lignes directrices. Les tentatives de l’intimée devant
de la province est-elle liée par les dispositions de la Loi les tribunaux de l’Alberta pour faire arrêter le projet
sur la protection des eaux navigables, L.R.C. (1985), ch. ont échoué et les ministres fédéraux de l’Environnement
N-22? - Loi d’interprétation, L.R.C. (1985), ch. 1-21 art. et des Pêches et des Océans ont refusé d’assujettir le
17. projet à l’évaluation en vertu du Décret sur les lignes
directrices. Le contrat de construction du barrage a été
Droit administratif - Contrôle judiciaire - Redressements octroyé en 1988 et les travaux étaient achevés à 40 pour
- Pouvoir discrétionnaire - Construction d’un barrage par 100 lorsque la présente action a été intentée devant la
l’Alberta sur la rivière Oldman - Barrage touchant des Cour fédérale en avril 1989. La Section de première
domaines de compétence fédérale comme les eaux instance a rejeté les demandes. La Cour d’appel a
navigables et les pêches - Groupe environnemental, par infirmé le jugement, annulé l’approbation accordée en
demande de bref de certiorari et de bref de mandamus à vertu de l’art. 5 de la Loi sur la protection des eaux
la Cour fédérale, cherche à forcer le ministre des navigables et ordonné aux ministres des Transports et
Transports et le ministre des Pêches et des Océans à se des Pêches et des Océans de se conformer au Décret
conformer ou décret fédéral sur les lignes directrices en sur les lignes directrices. Le présent pourvoir soulève
matière d’environnement - Demandes rejetées en raison la validité constitutionnelle et législative du Décret sur
du retard déraisonnable et de la futilité de la procédure - les lignes directrices et porte sur la nature et
La Cour d’appel a-t-elle commis une erreur en modifiant l’applicabilité de celui-ci. Il soulève aussi la question
la décision du juge des requêtes, prise dans l’exercice de de savoir si le juge des requêtes a bien exercé son pouvoir
son pouvoir discrétionnaire, de ne pas accorder la discrétionnaire dans sa décision de ne pas accorder le
réparation demandée? redressement demandé en raison du retard déraisonnable
et de la futilité de la procédure.
L’intimée, la Friends of the Oldman River Society
(la”Société”), un groupe environnemental de l’Alberta, Arrêt (le juge Stevenson est dissident): Le pourvoi est
par demande de bref de certiorari et de bref de mandamus rejeté, sauf qu’il ne sera pas délivré de bref de la nature
présentée à la Cour fédérale, cherche à forcer deux d’un mandamus ordonnant au ministre des Pêches et
ministère fédéraux, le ministère des Transports et le des Océans de se conformer au Décret sur les lignes
ministère des Pêches et des Océans, à procéder à une directrices.
évaluation environnementale conformément au Décret
fédéral sur les lignes directrices visant le processus
d’évaluation et d’examen en matière d’environnement, La validité législative du Décret sur les lignes
relativement à un barrage construit sur la rivière Oldman directrices
par la province d’Alberta - un projet qui touche plusieurs
sphères de compétence fédérale, notamment les eaux Le Décret sur les lignes directices a été validement
navigables, le pêcheries, les Indiens et les terres adopté conformément à l’art. 6 de la Loi sur le ministère
indiennes. Le Décret sur les lignes directrices a été pris de l’Environnement et il est de nature impérative.
en vertu de l’art. 6 de la Loi sur le ministère de Lorsqu’on examine l’art. 6 dans son ensemble, plutôt
l’Environnment et exige de tous les ministères et que seulement le terme «directives» en vase clos, on se
478
FRIENDS OF THE OLDMAN RIVER
rend compte que le législateur fédéral a opté pour activités fédéraux»; le Décret ne reçoit pas application
l’adoption d’un mécanisme de réglementation auquel on chaque fois qu’un projet peut comporter des
est soumis «légalement» et dont on peut obtenir répercussions environnementales sur un domaine de
l’exécution par bref de prérogative. Les «directives» ne compétence fédérale. Il doit toutefois s’agir tout d’abord
sont pas simplement autorisées par une loi, mais elles d’une «proposition» qui vise une «entreprise ou activité
doivent être officiellement adoptées par «arrêtés», sur à l’égard de laquelle le gouvernement du Canada participe
approbation du gouverneur en conseil. Ce processus à la prise de décisions». L’interprétation qu’il faut donner
contraste vivement avec le processus habituel à l’expression «participe à la prise de décisions» est que
d’établissement de directives de politique interne le gouvernement fédéral, se trouvant dans un domaine
ministérielle destinées à exercer un contrôle sur les relevant de sa compétence en vertu de l’art. 91 de la Loi
fonctionnaires relevant de l’autorité du ministre. constitutionnelle de 1867, doit avoir une obligation
positive de réglementation en vertu d’une loi fédérale
Le Décret sur les lignes directrices, qui exige du décideur relativement à l’entreprise ou à l’activité proposée.
qu’il tienne compte de facteurs socio-économiques dans L’expression «participe à la prise de décisions» dans la
l’évaluation des répercussions environnementales, ne va définition du terme «proposition» signifie une obligation
pas au-dela de ce qui est autorisé par la Loi sur le légale et ne devrait pas être interprétée comme ayant trait
ministère de l’Environnement. Le concept de la «qualité à des questions relevant généralement de la compétence
de l’environnement» prévu à l’art. 6 de la Loi ne se limite fédérale. Si cette obligation existe, il s’agit alors de
pas à l’environnement biophysique seulement. déterminer qui est le «ministère responsable» en la
L’environnement est un sujet diffus et, sous réserve des matière, puisque c’est ce ministère qui exerce le “pouvoir
impératifs constitutionnels, les conséquences éventuelles de décision” à l’égard de la proposition et qui doit donc
d’un changement environnemental sur le gagne-pain, la entamer le processus d’évaluation visé par le Décret sur
santé et les autres préoccupations sociales d’une les lignes directrices.
collectivité font partie intégrante de la prise de décisions
concernant des questions ayant une incidence sur la Le projet de barrage sur la rivière Oldman est visé par le
qualité de l’environnement. Décret sur les lignes directrices. Il peut être qualifié de
proposition dont le ministre des Transports seul est le
Le Décret sur les lignes directrices est compatible avec la «ministère responsable» en vertu de l’art. 2 du Décret.
Loi sur la protection des eaux navigables. La Loi n’a pas La Loi sur la protection des eaux navigables, notamment
pour effet d’empêcher explicitement ou implicitement le son art. 5, impose une obligation positive de
ministre des Transports de tenir compte de facteurs autres réglementation au ministre des Transports. Cette loi a
que ceux touchant la navigation dans l’exercice de son mis en place un mécanisme de réglementation qui prévoit
pouvoir d’approbation en vertu de l’art. 5 de la Loi. La qu’il est nécessaire d’obtenir l’approbation du ministre
fonction confiée au ministre en vertu du Décret vient avant qu’un ouvrage qui gêne sérieusement la navigation
s’ajouter à la responsabilité qu’il a en vertu de la Loi sur puisse être placé dans des eaux navigables ou sur, sous,
la protection des eaux navigables, et il ne peut invoquer au-dessus ou à travers de telles eaux.
une interprétation trop étroite des pouvoirs qui lui sont
conférés par des lois pour éviter de se conformer au Décret. Cependant, le Décret sur les lignes directrices ne
Il n’existe pas non plus de conflit entre, d’une part, le fait s’applique pas au ministre des Pêches et des Océans,
d’exiger, à l’art. 3 du Décret sur la lignes directrices, qu’un puisque la Loi sur les pêches ne renferme pas de
examen soit effectué “le plus tôt possible au cours de disposition de réglementation équivalente qui serait
l’étape de planification et avant de prendre des décisions applicable au projet. Le fait que le ministre possède le
irrévocables” et, d’autre part, le pouvoir de redressement, pouvoir discrétionnaire de demander des renseignements
prévu au par. 6(4) de la Loi, permettant au ministre visant à l’aider dans l’exercice d’une fonction législative
d’accorder une approbation après le début des travaux. ne signifie pas qu’il «participe à la prise de décisions»
Ce pouvoir constitue une exception à la règle générale au sens du Décret. Le ministre des Pêches et des Océans
énoncée à l’art. 5 de la Loi selon laquelle il faut obtenir a, en vertu de l’art. 37 de Loi sur les pêches, un pouvoir
une approbation avant le début de la construction et, dans législatif spécial limité qui ne constitue pas une obligation
l’exercice de son pouvoir discrétionnaire d’accorder une positive de réglementation.
approbation après le début des travaux, rien n’empêche le
ministre d’appliquer le Décret. L’étendue de l’évaluation en vertu de Décret sur les lignes
directrices n’est pas limitée au domaine particulier de
compétence à l’égard duquel le gouvernement du Canada
L’applicabilité du Décret sur les lignes participe à la prise de décisions au sens du terme
directrices «proposition». En vertu du Décret, le ministère
responsable qui a reçu le pouvoir de procéder à
L’application du Décret sur les lignes directrices n’est l’évaluation doit tenir compte des répercussions
pas restreinte aux «nouveaux projets, programmes et environnementales dans tous les domaines de compétence
479
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
l’environnement physique, économique et social touchant
fédérale. Le ministre des Transports, à titre de décideur
plusieurs domaines de compétence attribués aux deux
en vertu de la Loi sur la protection des eaux navigables,
paliers de gouvernement. Bien que les deux paliers
doit examiner les incidences environnementales du
puissent oeuvrer dans le domaine de l’environnement,
barrage sur les domaines de compétence fédérale, comme
l’exercice d’une compétence législative, dans la mesure
les eaux navigables, les pêcheries, des Indiens et les terres
où elle se rapporte à l’environnement, doit se rattacher
indiennes.
au domaine de compétence approprié. Les projets de
nature locale relèvent généralement de la compétence
provinciale, mais ils peuvent exiger la participation du
L’immunité de la Couronne
fédéral dans le cas où ils empiètent sur un domaine de
compétence fédérale comme en l’espèce.
Le juge en chef Lamer et les juges La Forest, L’Heureux-
Dubé, Sopinka, Gonthier, Cory, McLachlin et Iacobucci:
Le Décret sur les lignes directrices est intra vires du
la Couronne du chef de l’Alberta est par déduction
Parlement. Il ne tente pas de réglementer les
nécessaire liée par la Loi sur la protection des eaux
répercussions environnementales de matières qui relèvent
navigables. Le droit de propriété que la province peut
de la compétence de la province, mais fait simplement
détenir sur la lit de la rivière Oldman est assujetti au droit
de l’évaluation des incidences environnementales un
public de navigation, sur lequel le Parlement exerce une
élément essentiel de la prise de décisions fédérales. De
compétence législative exclusive. L’Alberta doit obtenir
par son caractère véritable, le Décret n’est rien de plus
l’autorisation législative du Parlement pour contruire un
qu’un instrument qui régit la façon dont les institutions
ouvrage qui entraverait sérieusement la navigation dans
fédérales doivent gérer leurs diverses fonctions.
la rivière Oldman; la Loi sur la protection des eaux
Essentiellement, le Décret comporte deux aspects
navigables est le mécanisme qu’elle doit utiliser à cette
fondamentaux. Il y a tout d’abord l’aspect de fond qui
fin. La Couronne du chef de l’Alberta est liée par la Loi,
porte sur l’évaluation des incidences environnementales,
car il s’agit là du seul moyen pratique d’obtenir
dont l’objet est de faciliter la prise de décisions dans le
l’approbation requise. Par aileurs, si la province n’était
domaine de compétence fédérale qui régit une
pas liée par la Loi, celle-ci serait privée de toute efficacité.
proposition. Cet aspect du Décret peut être maintenu au
Les provinces font partie des organismes susceptibles
motif qu’il s’agit d’un texte législatif se rapportant aux
de participer à des projets qui peuvent obstruer la
matières pertinentes énumérées à l’art. 91 de la Loi
navigation. Si la Couronne du chef d’une province était
constitutionnelle de 1867. Le deuxième aspect est
habilitée à saper l’intégrité des réseaux essentiels de
l’élément procedural ou organisationnel coordonnant le
navigation dans les eaux canadiennes, l’objet de la Loi
processus d’évaluation, qui peut dans un cas donné
sur la protection des eaux navigables serait, en fait,
toucher plusieurs domaines de compétence fédérale,
annihilé.
relevant d’un décideur désigné (le «ministère
responsable»). Cette facette vise à réglementer la façon
Le juge Stevenson (dissident): La province d’Alberta
dont les institutions et organismes du gouvernement du
n’est pas liée par la Loi sur la protection des eaux
Canada exercent leurs fonctions et responsabilités
navigables. Nul texte législatif ne lie la Couronne, sauf
administratives. Cela est indiscutablement intra vires
dans la mesure qui y est mentionée ou prévue. En
du Parlement. Cet aspect peut être considéré comme un
l’espèce, la Loi ne renferme pas de termes qui «lient
pouvoir accessoire de la compétence législative en cause,
expressément»˙ la Couronne et il n’existe pas d’intention
ou de toute façon, être justifié en vertu du pouvoir résiduel
claire de la lier qui «ressort du texte même de la loi». En
prévu à l’art. 91.
outre, le fait que la Couronne ne soit pas liée ne priverait
pas la Loi de toute efficacité ni ne donnerait lieu à une
Le Décret sur les lignes directrices ne peut être utilisé
absurdité. Il existe de nombreux organismes non
comme moyen déguisé d’envahir des champs de
gouvernementaux dont les activités sont régies par la Loi
compétence provinciale qui ne se rapportent pas aux
et l’objet de la Loi n’est donc pas annihilé. Si la Couronne
domaines de compétence fédérale concernés. Le
porte atteinte à un droit public de navigation, il est
«ministère responsable» n’a que le mandat d’examiner
possible de la pousuivre en justice. Il n’y a pas d’avantage
les questions se rapportant directement aux domaines de
important lié à l’approbation en vertu de la Loi. Il peut
compétence fédérale concernés. Toute ingérence dans
toujours y avoir ouverture à responsabilité civile.
la sphère de compétence provinciale est simplement
accessoire au caractère véritable du texte législatif.
La validité constitutionnelle du Décret sur les
lignes directrices
Le pouvoir discrétionnaire
L’«environnement» n’est pas un domaine distinct de
Le juge en chef Lamer et les juges La Forest, L’Heureux-
compétence législative en vertu de la Loi constitutionnelle
Dubé, Sopinka, Gonthier, Cory, McLachlin et Iacobucci:
de 1867 . Dans son sens générique, il englobe
La Cour d’appel fédérale n’a pas commis d’erreur, en
480
FRIENDS OF THE OLDMAN RIVER
modifiant la décision du juge des requêtes, prise dans qu’il a eu tort de procéder ainsi. L’on n’a pas répondu au
l’exercice de son pouvoir discrétionnaire, de ne pas critère en l’espèce.
accorder la réparation sollicitée en raison du retard
déraisonnable et de la futilité de la procédure. L’intimée
s’est efforcée d’une façon soutenue de contester, dans Les dépens
la cadre des poursuites judiciaires devant les tribunaux
de l’Alberta et dans les lettres envoyées aux ministères Le juge en chef Lamer et les juges La Forest, L’Heureux-
fédéraux, d’une part, la légalité des mesures prises par Dubé, Sopinka, Gonthier, Cory, McLachlin et lacobucci:
l’Alberta relativement à la construction du barrage, et Il s’agit d’un cas où il est approprié d’accorder les dépens
d’autre part, l’acquiescement des ministres appelants; il comme entre procureur et client à la Société intimée,
n’existe pas de preuve que l’Alberta a subi un préjudice compte tenu de la situation de cette dernière et du fait
quelconque en raison d’un retard à intenter la présente que les ministères fédéraux ont été joints comme
action. Malgré les contestations judiciaires en cours, la appelants même s’ils n’avaient pas auparavant présenté
contruction du barrage s’est poursuivie. La province une demande d’autorisation de pourvoi à notre Cour.
n’était pas disposée à consentir à une évaluation des
incidences environnementales en vertu du Décret avant Le juge Stevenson (dissident): Les appelants ne devraient
l’épuisement de tous les recours légaux. Le juge des pas être contraints de payer les dépens comme entre
requêtes n’a pas suffisamment accordé d’importance à procureur et client. Il n’y a pas de raison de déroger à
ces considérations, ne laissant à la Cour d’appel d’autre notre règle générale que la partie qui a gain de cause a
choix que d’intervenir. Le motif de la futilité de la droit aux dépens sur la base des frais entre parties. Les
procédure ne pouvait justifier un refus dans les groupes d’intérêt public doivent être disposés à se plier
circonstances. Ou ne devrait refuser la délivrance d’un aux mêmes principes que les autres plaideurs et accepter
bref de prérogative pour ce motif que dans les rares cas une certaine responsabilité quant aux dépens.
où sa délivrance serait vraiment inefficace. En l’espèce,
il n’est pas évident que l’application du Décret, même à
cette étape tardive, n’aura pas un certain effet sur les JURISPRUDENCE
mesures susceptibles d’être prises pour atténuer toute
incidence environnementale néfaste que pourrait avoir Citée por le juge La Forest
le barrage sur un domaine de compétence fédérale.
Arrêts mentionnés: Fédération canadienne de la faune
Le juge Stevenson (dissident): La Cour d’appel fédérale Inc. c. Canada (Ministre de l’Environnement), (1989) 3
a commis une erreur en modifiant la décision du juge des C.F. 309, (1re inst.), conf. (1989), 99 N.R. 72; Alberta
requêtes, prise dans l’exercice de son pouvoir Government Telephones c. Canada (Conseil de la
discrétionnaire, de ne pas accorder une réparation par voie radiodiffusion et des telécommunications canadiennes)
de bref de prérogative. La cour a clairement commis une (1989) 2 R.C.S. 225; Renvoi relatif la Loi anti-inflation,
erreur en rejetant sa conclusion relativement à la question (1976) 2 R.C.S. 373; Martineau c. Comité de discipline
du retard. La common law a toujours exigé du requérant des détenus de l’Institution de Matsqui, [1978] 1 R.C.S.
qu’il agisse avec diligence lorsqu’il sollicite un bref de 118; Maple Lodge Farms Ltd. c. Gouvernement du
prérogative. Compte tenu de l’envergure du projet et des Canada, (1982) 2 R.C.S. 2; R. c. Crown Zellerbach
intérêts en jeu, il n’ était pas raisonnable que la Société Canada Ltd. (1988) 1 R.C.S. 401; Belanger c. The King
intimée attende 14 mois avant de contester l’approbation (1916), 54 R.C.S. 265; R. & W. Paul, Ltd. c. Wheat
du ministre des Transports. Il est impossible de conclure Commission, (1937) A.C. 139, Re Gray (1918), 57 R.C.S.
que l’Alberta n’a pas subi un préjudice en raison du retard. 150; Daniels c. White, (1968) R.C.S. 517; Smith c. The
Le juge des requêtes n’avait pas à tenir compte des Queen, (1960) 3. C.F. 410; Province of Bombay c.
procédures judiciaires que l’intimée et d’autres parties Municipal Corporation of Bombay, (1947) A.C. 58;
avaient entamées devant les tribunaux de l’Alberta. Ces Sparling c. Québec (Caisse de dépôt et placement du
procédures constituaient des recours distincts et différents Québec), (1988) 2 R.C.S. 1015; R. c. Eldorado Nucléaire
du redressement sollicité en l’espèce et n’étaient pas Ltée, (1983) 2 R.C.S. 551; Sa Majesté du chef de la
pertinentes quant aux questions en litige. La présente province de l’Alberta c. Commission canadienne des
action porte sur la constitutionnalité et l’applicabilité du transports, (1978) 1 R.C.S. 61; R. c Quellette, (1980) 1
Décret sur les lignes directrices. Il soulève des questions R.C.S. 568; In Re Provincial Fisheries (1896), 26 R.C.S.
nouvelles et différentes. Pour déterminer s’il devait 444; Flewelling c Johnston (1921), 59 D.L.R. 419; Orr
exercer son pouvoir discrétionnaire contre l’intimée, le Ewing v. Colquhoun (1877), 2 App. Cas. 839; Attorney-
juge des requêtes devait examiner seulement les facteurs General c. Johnson (1819), 2 Wils. Ch. 87. 37 E.R. 240;
qui, selon lui, se rattachaient directement à la demande Wood c. Esson (1884), 9 R.C.S. 239; Reference re Waters
dont il était saisi. On n’est pas justifié de modifier la and Water-Powers, (1929) R.C.S. 200; The Queen c.
décision qu’il a prise dans l’exercice de son pouvoir Fisher (1891), 2 Ex. C.R. 365; Queddy River Driving
discrétionnaire, sauf si l’on peut affirmer avec certitude Boom Co. c. Davidson (1883), 10 R.C.S. 222; Whishreed
481
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
c. Walley, (1990) e R.C.S. 1273; Fowler c. La Reine, Acte concernant les bômes et outres ouvrages établis en
(1960) 2 R.C.S. 213; Northwest Falling Contractors Ltd. eaux navigables soit sous l’autorité d’actes provincioux
c. La Reine (1990) 2 R.C.S. 292; Murphyores soit-autrement, S.C. 1883, ch. 43, art. 1.
Incorporated Pty. Ltd. c. Commonwealth of Australia
(1976), 136 C.L.R. 1; Devine c. Québec (Procureur Acte concernant les ponts établis en vertu d’actes
général), (1988) 2 R.C.S. 790; Jones c. Procureur général provinciaux sur des eaux navigables, S.C. 1882, ch. 37.
du Nouveau-Brunswick, (1975) 2 R.C.S. 182; Knox
Contracting Ltd c. Canada, [1990] 2 R.C.S. 338; Acte pour pourvoir à enlèment d’obstructions provenant
Campagnie des chemins de fer nationaux du Canada c. de naufrages et autres causes semblables dans les rivières
Courtois, (1988) 1 R.C.S. 868; Polylok Corp. c. Montreal navigables du Canada, et pour d’autres objets relatifs aux
Fast Print (1975) Ltd, (1984) 1 C.F. 713; Charles naufrages, S.C. 1874, ch. 29.
Osenton & Co. c. Johnston (1942) A.C. 130; Harelkin c.
Université de Regina, (1979) 2 R.C.S. 561; Friends of Alberta Rules of Courts, Alta. Reg. 390/68, art. 753.11(1)
the Oldman River Society c. Alberta (Minister of the (ad Aka. Reg. 457/87, art. 3)
Environment) (1987), 85 A.R. 321; Friends of Oldman
River Society c. Alberta (Minister of the Environment) Code de procédure civile, L.R.Q. ch, C. 25, art. 835.1,
(1968), 89 A.R. 339; Friends of the Old Man River
Society c. Energy Resources Conservation Board (Also.) Décret sur les lignes directrices visant le processus
(1988), 89 A.R. 280; Champion c. City of Vancouver, d’évaluation et d’examen en matière d’énvironnement,
(1918) 1 W.W.R. 216; Isherwood c. Ontario and DORS/34-467, art 2 « ministère responsable»,
Minesota Power Co. (1911), 18 O.W.R. 459. «promoteur», «proposition», 3, 4, 6, 8, 10, 12, 14, 25.
Citée par le juge Stevenson (dissident) Judicial Review Procedure Act, R.S.B.C. 1979, ch. 209,
art. 11.
Alberta Government Telephones c. Canada (Conseil de
la radiodiffusion et des télécommunications Loi constituionnelle de 1867, art. 91 «préeambule»,
canadiennes), (1989) 2 R.C.S. 225; Province of Bombay 91(10), (29), 92(10), 92A.
c. Municipal Corporation of Bombay, (1947) A.C. 58;
Champion c. City of Vancouver, (1918) 1 W.W.R. 216; Loi de 1987 sur les transports nationaux. L.R.C. (1985),
Harelkin c. Université de Regina, (1979) 2 R.C.S. 561; ch. 28 (e suppl.), art. 3.
Polylok Corp. c. Montreal Fast Print (1975) Ltd., (1984)
1 C.F. 713; P.P.G. Industries Canada Ltd c. Procureur Loi d’interpétation, L.R.C. (1985), ch. 1-21, art. 2(1),
général du Canada, (1976) 2 R.C.S. 739; Syndicat des 17.
employés du commerce de Rivière-du-Loup (section
Èmilio Boucher, C.S.N.) c. Turcotte, (1984)) C.A. 316. Loi sur la Cour fédérale, L.R.C. (1985), ch. F-7, art. 28(2).
Lois et règlements cités Loi sur la procédure de révision judiciaire, L.R.O. 1990,
ch. J.l. art. 5.
Acte à l’effet d’autoriser la corporation de la ville
d’Emerson à construire un pont libre pour les voyageurs Loi sur la protection des eaux navigables, L.R.C. (1985),
et le trafic sur la rivière Rouge, dans la province du ch. N-22 art. 4, 5, 6, 21, 22.
Manitoba, S.C. 1880, ch. 44.
Loi de la protection des eaux navigables, S.R.C. 1906,
Acte à l’effect de mieux protéger les cours d’eau et ch. 115.
rivières navigables, S.C. 1873, ch. 65.
Loi sur le ministère de l’Environnement, L.R.C. (1985),
Acte concernant certaines constructions dans et sur les ch. E-10, art. 4, 5, 6.
eaux navigables, S.C. 1886, ch. 35, art. 1, 7.
Loi sur le ministère des Pêches et des Océans, L.R.C.
Acte concernant certaines constructions dans et sur les (1985), ch. F-15.
eaux navigables, Sl.R.C. 2886, ch. 92.
Loi sur les chemins de fer, L.R.C. (1985), ch. R-3.
Acte concernant la protection des eaux navigables, S.C.
1886, ch. 36. Loi sur les ouvrages destinés à l’amélioration des cours
d’eau internationaux, L.R.C. (1985), ch. I-20.
Acte concernant la protection des eaux navigables, S.R.C.
1886, ch. 91. Loi sur les pêches, L.R.C. (1985), ch. F-14, art. 35, 37,
40.
482
FRIENDS OF THE OLDMAN RIVER
Doctrine citée de bref de la nature d’un mandamus ordonnant au
ministre des Pêches et des Océans de se conformer aux
Canada. Commission de réforme du droit. Constitutional lignes directrices fédérales en matière d’environnement.
Jurisdiction in Relation to Environmental Law. Le juge Stevenson est dissident.
Document non publié rédigé par Marie E. Hatherly, 1986.
D.R. Thomas, c.r. T.W. Wakeling et G.D. Chipeur, pour
Canada. Conseil canadien des ministres des Ressources l’appelante Sa Majesté la Reine du chef de l’Alberta.
et de l’Environnement. Rapport du Groupe de Travail
national sur l’environnement et l’économie, 24 septembre E.R. Sojonky, c.r., B.J. Saunders et J. de Pencier, pour
1987. les appelants le ministre des Transports et le ministre
des Pêches et des Océans.
Cotton, Roger et D. Paul Emond. «Environmental Impact
Assessment». In John Swaigen, ed., Environmental B.A. Crane, c.r. pour l’intimée.
Rights in Canada. Toronto: Butterworths, 1981, 245.
J.K. Samson et. A. Gingras, pour l’intervenant le
De Smith, S.A. Judicial Review of Adminsitrative Action, procureur général du Québec.
4th ed. By J.M. Evans, London: Stevens & Sons Ltd.,
1980. P.H. Banchet, pour l’intervenant le procureur général du
Nouveau-Brunswick.G.E. Hannon, pour l’intervenant le
Dussault, René et Louis Borgeat. Traité de droit procureur général du Manitoba.
administratif, 2e éd., t. 1 et III. Québec: Les Presses de
l’Université laval, 1984-1989. G.H. Copley, pour l’intervenant le procureur général de
la Colombie-Britannique.
Emond, D.P. Environmental Assessment Law in Canada,
Toronto: Emond-Montgomery Ltd., 1978. R.G. Richards , pour l’intervenant le procureur général
de la Saskatchewan.
Emond, Paul «The case for a Greater Federal Role in the
Environmental Protection Field: An Examination of the B.G. Welsch, pour l’intervenant le procureur général de
Pollution Problem and the Constitution» (1972), 10 Terre-Neuve.
Osgoode Hall L.J. 647.
R.A. Kasting et J. Donihee, pour l’intervenant le ministre
Gibson, Dale, «Constitutional Jurisdiction over de la Justice des Territoires du Nord-Quest.
Environmental management in Canada» (1973), 23
U.T.L.J. 54. P.W. Hutchins, D.J. Soroka et F.S. Gertler , pour
l’intervenante la Fraternité des Indiens du Canada/
Gillespie, Colia J. «Enforceable Rights from l’Assemblée des premières Nations.
Administrative Guidelines»? (1989-1990), 3 C.J.A.L.P.
204. J.J. Gill, pour les intervenants la Nation dénée et
l’Association des Métis des Territoires du Nord-Ouest,
Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: et le Conseil national des autochtones du Canada
Carswell, 1989. (Alberta).
Jeffery, Michael I. Environmental Approvals in Canada. G.J. McDade et J.B. Hanebury, pour les intervenants le
Toronto: Butterworths, 1989. Sierra Legal Defence Fund, l’Association canadienne du
droit de l’environnement, le Sierra Club of Western
Jones, David Phillip et Anne s. de Villars. Principles of Canada, Survie culturelle (Canada), et les Amis de la
Administrative Law. Toronto: Carswell, 1985. Terre.
La Forest, Gérard V. Water Law in Canada. Ottawa: M.W. Mason, pour l’intervenante l’Alberta Wilderness
Information Canada, 1973. Association.
POURVOI contre un arrêt de la Cour d’appel fédérale, Version française du jugement du juge en chef Lamer et
(1990) 2 C.F. 18, 68 D.L.R. (4th) 375, (1991) 1 W.W.R. des juges La Forest, L’Heureux-Dubé, Sopinka, Gonthier,
352, 108 N.R. 241, 76 alta. L.R. (2d) 289, 5 C.E.L.R. Cory, McLachlin et Iacobucci rendu par
(N.S.) 1, qui a infirmé un jugement de la Section de
première instance, (1990) 1 C.F. 248 (1990) 2 W.W.R. LE JUGE LA FOREST - La protection de
150, 30 F.T.R. 108, 70 Alta. L.R. (2d) 289, 4 C.E.L.R. l’environnement est devenue l’un des principaux défis
(N.S.) 137. Pourvoi rejeté, sauf qu’il ne sera pas délivré de notre époque. Pour y faire face, les gouvernements et
483
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
les organismes internationaux ont participé à la création Décret sur les lignes directrices relative à un barrage
d’un éventail important de régimes législatifs et de construit sur la rivière Oldman par le gouvernement de
structures administratives. Au Canada, les l’Alberta. Ce dernier a lui-même procédé à d’importantes
gouvernements fédéral et provinciaux ont mis sur pied études environnementales qui ont donné lieu à des
des ministères de l’environnement, qui existent consultations publiques. Toutefois, puisque le projet
maintenant depuis environ 20 ans. Cependant, on s’est touche des eaux navigables, des pêcheries, des Indiens
récemment rendu compte qu’un ministère de et des terres indiennes, il comporte des question de
l’environnement est entouré d’un grand nombre d’autres compétence fédérale. Plus particulièrement. Société
ministères dont les politiques entrent en conflit avec ses soutient que le ministre des Transports doit approuver le
objectifs. En conséquence, le gouvernement fédéral a projet en vertu de la Loi sur la protection des eaux
pris des mesures pour confier au ministère de navigables, L.R.C. (1985), ch. N-22 et que, ce faisant, il
l’Environnement un rôle central et élargir le rôle d’autres doit prévoir la tenue d’un évaluation publique du project
ministères et organismes gouvernementaux pour conformément au Décret sur les lignes directrices. Elle
s’assurer qu’ils tiennent compte des préoccupations soutient également que le ministre des Pêches et des
touchant l’environnement dans la prise de décisions Océans, une obligation similaire dans l’exécution de ses
susceptibles d’entraîner des incidences fonctions en vertu de la Loi sur les pêches, L.R.C. (1985),
environnementales. ch. F-14.
À cette fin, en vertu de l’art. 6 de la Loi sur le ministère Le présent pourvoi soulève aussi la question de savoir si
de l’Environnement, L.R.C. (1985), ch. E-10, le ministre le juge des requêtes a bien exercé son pouvoir
peut par arrêté, au titre de celles de ses fonctions qui discrétionnaire dans sa décision concernant la délivrance
portent sur la qualité de l’environnement et avec d’un bref de certiorari ou de mandamus . En
l’approbation du gouverneur en conseil, établir des conséquence, les faits pertinents doivent être présentés
directives à l’usage des ministèrers et des organismes en détail.
fédéraux dont ceux de réglementation dans l’exercice de
leurs pouvoirs et fonctions. Conformément à cette Les faits
disposition, le Décret sur les lignes directrices visant le
processus d’évaluation et d’examen en matière L’historique du projet débute en mai 1958 au moment
d’environnement («Décret sur les lignes directrices») a où le gouvernement de l’Alberta a demandé à
été pris et approuvé en juin 1984, DORS/84-467. Dans l’Administration du rétablissement agricole des Prairies
l’ensemble, ces lignes directrices exigent de tous les («ARAP») du ministère fédéral de l’Agriculture
ministères et organismes fédéraux qui exercent un d’évaluer la possibilité de la construction d’un réservoir
pouvoir de décision à l’égard d’une proposition, c’est-à- pour le stockage de l’eau de la rivière Oldman à un endroit
dire une entreprise ou activité susceptible d’entraîner des appelé Livingston Gap. En décembre 1966, l’ARAP a
répercussions environnementales sur une question de déposé son rapport et proposé la réalisation d’une étude
compétence fédérale, qu’ils procèdent à un examen initial plus poussée relativement à un autre emplacement le long
de cette proposition afin de déterminer si elle peut de la rivière Oldman, en l’occurrence Three Rivers. Entre
éventuellement comporter des effets néfastes sur 1966 et 1974, une étude fédérale-provinciale sur
l’environnement. Advenant le cas où une proposition l’approvisionnement en eau a été réalisée. Après quoi,
risque d’avoir un effet néfaste important sur en juillet 1974, le ministère de l’Environnement de
l’environnement, on prévoit la tenue d’un examen public l’Alberta a entrepris des études visant à examiner les
effectué par une commission d’évaluation besoins en eau et à déterminer quels emplacements sur
environnementale dont les membres doivent faire preuve la rivière Oldman et ses affluents seraient susceptibles
d’objectivité, être à l’abri de l’ingérence politique et de servir au stockage de l’eau. Ces études devaient se
posséder des connaissances et une expérience dérouler en deux étapes.
particulières se rapportant aux effets de la proposition
sur les plans technique environnemental et social. La première consistait en une évaluation initiale des
emplacements dans le bassin de la rivière Oldman aux
Le présent pourvoi soulève la validité constitutionnelle fins du stockage de l’eau et a été réalisée par un comité
et législative du Décret sur les lignes directrices et porte consultatif technique composé de représentants de
sur la nature et l’applicabilité de celui-ci. Ces questions plusieurs organismes et ministères du gouvernement
s’inscrivent dans un contexte où l’intimée, la Friends of provincial, notamment Environnement, Culture et
the Oldman River Society (la «socités», un groupe Multiculturalisme, l’Energy Resources Conservation
environnement de l’Alberta, par demande de bref de Board, la division du poisson et de la faune de
certiorari et de bref de mandamus, cherche à forcer deux l’Agriculture, ainsi que de représentants des districts
minstères fédéraux, le ministère des Transports et le municipaux et de l’industrie. Le comité a déposé son
ministère des Pêches et des Océans, à procéder une rapport le 14 juillet 1976; et, par la suite, une série de
évaluation environnementale publique conformément au consultations publiques s’est tenue auprès des autorités
484
FRIENDS OF THE OLDMAN RIVER
locales et d’autres groupes et particuliers. On a procédé avant cette annonce, le projet de construction du barrage
à l’évaluation des réponses reçues et déterminé les avait été examiné par le Comité régional de sélection et
questions qui en découlaient en vue de les examiner au de coordination (?CRSC), un comité du ministère fédéral
cours de la seconde étape. de l’Environnement. Le CRSC devait s’assurer que les
projets susceptibles d’entraîner une incidence sur les
La seconde étape a commencé le 4 février 1977 au domaines de compétence fédérale soient soumis à une
moment de l’annonce par le ministre de l’Environnement évaluation environnementale, et il a suivi l’évolution du
de la mise sur pied du «Oldman River Study Management projet de construction du barrage jusqu’à ce qu’il soit
Committee» (le comité de gestion de l’étude sur la rivière décidé qu’il ne serait pas construit sur les terres indiennes.
Oldman), qui était formé de six représentants du public
et de trois représentants du gouvernement provincial. Ce Après l’annonce de la construction du barrage à Three
comité devait examiner les questions soulevées par le Rivers, l’Alberta a entrepris la conception du barrage et
public au cours de la première étape et présenter des l’élaboration d’un plan d’atténuation ou d’exploitation
recommandations sur la gestion globale des eaux du des incidences environnementales qui a donné lieu à
bassin de la rivière, devant notamment tenir compte des d’autres études environnementales et à la tenue de
préoccupations des résidents de la région. Cette étape rencontres publiques. Le ministère provincial de
devait être plus approfondie que la première et comporter l’Environnement a alors ouvert un bureau d’information
notamment l’étude de questions touchant l’ensemble du sur le projet, situé à proximité de Three Rivers, afin de
bassin de la rivière, savoir la salinisation, la répondre aux demandes de renseignements du public.
sédimentation, les loisirs, l’habitat du poisson et d’autres Le district municipal de Pincher Creek a ensuite constitué
questions environnementales. On a encouragé le public plusieurs sous-comités afin de faire connaître au
à participer, une série de rencontres et d’ateliers publics ministères albertain de l’Environnemnt les
ont eu lieu et divers groupes d’intérêts dont les bandes préoccupations d’intérêt local concernant notamment
indiennes et les groupes environnementaux, ont présenté l’utilisation des terres, le poisson et la faune, les loisirs
des observations orales et écrites. Le comité de gestion et l’agriculture. En outre, le ministre provincial de
a soumis son rapport final en 1978. l’Environnement a demandé la constitution d’un comité
consultatif local chargé de le conseiller sur des questions
La même année, un groupe a été constitué au sein de touchant le réaménagement des routes, les préoccupations
l’Environment Council of Alberta (le «conseil»); on lui dans le domaine de la pêche et de la faune et les
a ordonné de tenir des audiences publiques sur la gestion possibilités offertes en matière de loisirs. Après avoir
des ressources en eau dans le bassin de la rivière Oldman. recueilli des renseignements au cours de rencontres
Plusieurs audiences publiques ont de nouveau eu lieu publiques, le comité a soumis au ministre son rapport
dans tout le Sud de l’Alberta et le conseil a reçu de accompagné de recommandations au sujet des pêches,
nombreux exposés représentant les vues d’un large de la faune, des ressources historiques, de l’agriculture,
échantillon de la population albertaine, notamment le des loisirs et du transport.
milieu des affaires, le secteur agricole, les gouvernements
locaux et les bandes indiennes. Le conseil a soumis son En 1987, le CRSC fédéral a de nouveau participé au
rapport au ministre de l’Environnement en Août 1979 et projet, à la demande du ministère des Affaires indiennes
a recommandé un nouvel emplacement, à Brocket, situé et du Nord canadien, afin d’en examiner l’incidence sur
sur la réserve indienne de Peigan, dans l’hypothèse où les intérêts fédéraux, notamment sur la réserve indienne
un barrage serait nécessaire. de Peigan située a environ 12 kilomètres en aval de
l’emplacement du barrage. L’Alberta avait déjà octroyé
Le gouvernement provincial a ensuite examiné ce rapport à la bande indienne de Peigan des fonds pour qu’elle
et celui de 1978 et a annoncé le 29 août 1980 qu’il devait effectue une étude indépendante de l’incidence du projet
décider de construire un barrage sur la rivière Oldman. sur la réserve et ses habitants. La bande de Peigan a
Il a précisé que l’emplacement de Three Rivers était soumis son rapport au ministre provincial de
l’emplacement privilégié, mais qu’il reportait sa décision l’Environnement en février 1987. Il portait notamment
définitive quant à ce choix jusqu’à ce que la bande sur l’irrigation, les questions des eaux de surface et des
indienne de Peigan ait pu présenter une proposition eaux souterraines, la sécurité du barrage, l’évaluation des
concernant la construction du barrage à Brocket. En pêches et l’incidence du projet sur les plans spirituel et
novembre 1983, la bande de Peigan a présenté sa position culturel. Le rapport préparé sur l’ordre du CRSC en
au ministre de l’Environnement et précisé juillet 1987 concluait que les effets du projet sur la réserve
l’indemnisation qu’elle prévoyait dans l’hypothèse où seraient favorables ou atténuables, mais faisait ressortir
le barrage serait construit à Brocket. le possibilité de répercussions environnementale
négatives sur la réserve, soit un accroissement de
Le 8 Août 1984, le Premier Ministre de l’Alberta a tourbillons de poussière, une augmentation du niveau de
annoncé que le gouvernement avait décidé de construire mercure dans le poisson et l’extinction des forêts de
le barrage à l’emplacement de Three Rivers. Toutefois, peupliers dans le périmètre d’inondation.
485
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
J’arrive maintenant à une étape d’importance primordiale. été rejetée le 21 Avril 1988. La Société a également
Le 10 mars 1986, le ministère du l’Environnement de demandé à l’Alberta Energy Resources Conservation
l’Alberta a demandé au ministre fédéral des Transports Board de tenir une audience publique en vertu de l’Hydro
d’approuver l’ouvrage en vertu de l’art. 5 de la Loi sur and Electric Energy Act, R.S.A. 1980, ch. H-13, mais
la protection de eaux navigables. Cette disposition cette demande a été refusée. La Cour d’appel de l’Alberta
prévoit qu’il est interdit de construire un ouvrage dans a confirmé cette décision. En août 1988, la vice-
les eaux navigables à moins qu’il n’ait préalablement présidente de la Société a déposé une plainte devant un
été approuvé par le ministre. Dans l’évaluation de la juge de paix, alléguant qu’il y avait eu contravention à la
demande, le ministre a examiné l’incidence du projet sur Loi sur les pêches du fédéral; toutefois, le procureur
la navigation et l’a approuvé, le 18 septembre 1987, sous général de l’Alberta a ordonné un arrêt des procédures.
réserve de certaines conditions relatives à la navigation.
Je tiens toutefois à indiquer qu’il n’a pas assujetti la Le contrat de construction du barrage a été octroyé en
demande à une évaluation en vertu du Décret sur les Février 1988 et, le 31 Mars 1989, les travaux étaient
lignes directrices. Comme nous le verrons, plusieurs de achevés à 40 pour 100. La présente action a été intentée
principales questions soulevées dans le présent pourvoi le 21 avril 1989 devant la Section de première instance
découlent de la question de savoir s’il aurait dû le faire. de la Cour fédérale, (1990) 1 C.F. 248. Dans cette action,
la Société sollicitait une ordonnance cassant par voie de
Ce n’est qu’ensuite que la Société intimée commence à certiorari l’approbation donnée par le ministre des
jouer un rôle. En effet, l’intimée a été constituée en Transports ainsi qu’un bref de la nature d’un mandamus
Société le 8 september 1987 pour s’opposer au projet et ordonnant au ministre des Transports et au ministre des
a été informée que le ministre des Transports avait Pêches et des Océans de se conformer au Décret sur les
approuvé le projet le 16 février 1988. Toutefois, certains lignes directrices. Le juge en chef adjoint Jérome a rejeté
particuliers, qui sont ensuite devenus membres de la la demande, mais la Société a eu gain de cause devant la
Société lors de sa constitution, s’étaient efforcés Cour d’appel fédérale, (1990) 2 C.F. 18. Notre Cour a
d’empêcher l’évolution du projet. À l’été 1987, le accordé l’autorisation de pourvoi le 13 septembre 1990,
Southern Alberta Environmental Group avait écrit au (1990) 2 R.C.S. x.
ministre des Pêches et des Océans pour lui demander de
procéder une évaluation initiale en vertu du Décret sur Les dispositions législatives
les lignes directrices. Cette demande fut refusée au motif
que les problèmes possibles avaient été pris en charge et Avant de poursuivre, il est utile de présenter les
en raison de l’existence des [TRADUCTION] principales parties des textes législatifs pertinents.
«arrangements administratifs qui régissent depuis
longtemps la gestion des pêches en Alberta». Ce refus, La Loi sur le ministère de l’Environnement:
à l’instar des mesures susmentionnées prises par le
ministre des Transports, joue un rôle important dans 4.(1) Les pouvoirs et fonctions du ministre s’étendent
l’argumentation juridique qui a suivi. Dans une lettre du d’une façon générale à tous les domaines de compétence
3 Décembre 1987, la Société intimée a demandé au du Parlement non attribués de droit à d’autres ministères
ministre de l’Environnement d’assujettir le projet à ou organismes fédéraux et liés:
l’évaluation en vertu du Décret sur les lignes directrices,
cette fois principalement au motif que le projet de barrage a) à la conservation et l’amélioration de la qualité de
relevait fondamentalement de la compétence provinciale l’environnement naturel, notamment celle de l’eau, de
et qu’Environnement Canada était convaincu que le plan l’air et du sol;
d’atténuation proposé par l’Alberta devait pallier tout
effet néfaste sur les ressources halieutiques. Le 22 Février 5. Dans le cadre des pouvoirs et fonctions que lui confère
1988, la Société a de nouveau tenté d’inciter le ministre l’article 4, le ministre:
de l’Environnement à invoquer l’application du Décret
sur les lignes directrices, mais a de nouveau essuyé un a) lance, recommande ou entreprend à son initiative
refus en Juin 1988 pour le même motif de compétence. et coordonne à l’échelle fédérale des programmes
visant à:
La Société a également tenté à l’échelon provincial de
faire arrêter le projet. Le 26 Octobre 1987, elle a présenté (i) favoriser la fixation ou l’adoption d’objectifs ou de
une demande auprès de la Cour du Banc de la Reine de normes relatifs à la qualité de l’environnement ou à
l’Alberta sollicitant l’annulation d’un permis provisoire la lutte contre la pollution.
délivré en vertu de la Water Resources Act, R.S.A. 1980,
ch. W-5. Ce permis a été annulé le 8 Décembre 1987 et (ii) faire en sorte que les nouveaux projets, programmes
un second permis provisoire délivré le 5 Février 1988; la et activités fédéraux soient, dès les premières étapes
Société a de nouveau demandé à la Cour du Banc de la de planification, évalués en fonction de leurs risques
Reine d’annuler ce permis. Toutefois, cette demande a pour la qualité de l’environnement naturel, et que
486
FRIENDS OF THE OLDMAN RIVER
ceux d’entre eux dont on aura estimé qu’ils 6. Les présentes lignes directrices s’appliquent aux
présentent probablement des risques graves fassent propositions
l’objet d’un réexamen dont les résultats devront être
pris en considération. a) devant être réalisées directement par un ministère
responsable;
(iii) fournir, dans l’intérêt public, de l’information sur
l’environnement à la population; b) pouvant avoir des répercussions environnementales
sur une question de compétence fédérale;
b) favorise et encourage des comportements tendant à
protéger et améliorer la qualité de l’environnement, c) pour lesquelles le gouvenement du Canada s’engage
et coopère avec les gouvernements provinciaux ou financièrement; ou
leurs organismes, ou avec tous autres organismes,
groupes ou particuliers, à des programmes dont les d) devant être réalisées sur des terres administrées par
objets sont analogues; le gouvernement du Canada, y compris la haute mer.
c) conseille les chefs des divers ministères ou On doit aussi mentionner l’art. 5 de la Loi sur la
organismes fédéraux en matière de conservation et protection des eaux navigables:
d’amélioration de la qualité de l’environnement
naturel. 5. (1) Il est interdit de construire ou de placer un ouvrage
dans des eaux navigables ou sur, sous, au dessus ou à
6. Au titre de celles de ses fonctions qui portent sur la travers de telles eaux à moins que:
qualité de l’environnement, le ministre peut par arrêté,
avec l’approbation du gouverneur en conseil, établir des a) préalablement au début des travaux, l’ouvrage, ainsi
directives à l’usage des ministères et organismes fédéraux que son emplacement et ses plans, n’aient été
et, s’il y a lieu, à celui des sociétés d’Etat énumérées à approuvés par le ministre selon les modalités qu’il
l’annexe III de la Loi sur la gestion des finances publiques juge à propos;
et des organismes de réglementation dans l’exercice de
leurs pouvoirs et fonctions. b) la construction de l’ouvrage ne soit commencée dans
les six mois et terminée dans les trois ans qui suivent
Conformément à l’art. 6, le ministre a par arrêté, avec l’approbation visée à l’alinéa a) ou dans le délai
l’approbation du gouverneur en conseil, établi le Décret supplémentaire que peut fixer le ministre;
sur les lignes directrices, dont les dispositions pertinentes
sont: c) le construction, l’emplacement ou l’entretien de
l’ouvrage ne soit conforme aux plans, aux
2. Les définitions qui suivent s’appliquent aux présentes règlements et aux modalités que renferme
lignes directrices. l’approbation visée à l’alinéa a).
....... L’HISTORIQUE JUDICIAIRE
«ministère responsable» Ministère qui, au nom du La Section de première instance
gouvernement du Canada, exerce le pouvoir de décision
à l’égard d’une proposition. Le juge en chef adjoint Jérome a présenté les quatre
questions principales de la façon suivante: (1) la
....... requérante a-t-elle qualité pour présenter la demande en
l’espèce? (2) les ministres fédéraux nommés sont-ils
«promoteur» L’organisme ou le ministère responsable tenus d’invoquer le Décret sur les lignes directrices? (3)
qui se propose de réaliser une proposition. la décision Fédération canadienne de la faune Inc. c.
Canada (Ministre de l’Environnement), (1989) 3 C.F. 309
«proposition» S’entend en outre de toute entreprise ou (1e inst.), confirmée par (1989), 99 N.R. 72 (C.A.F.),
activité à l’égard de laquelle le gouvernement du Canada s’applique-t-elle aux faits de la présente espèce? (4) la
participe à la prise de décisions. cour devait-elle exercer son pouvoir discrétionnaire
d’accorder les redressements demandés? En ce qui
3. Le processus est une méthode d’auto-évaluation selon concerne la première question, il a simplement tenu pour
laquelle le ministère responsable examine, le plus tôt acquis, sans en décider, que la Société avait la qualité
possible au cours de l’étape de planification et avant de voulue pour présenter la demande.
prendre des décisions irrévocables, les répercussions
environnementales de toutes les propositions à l’égard En ce qui concerne le Décret sur les lignes directrices,
desquelles il exerce le pouvoir de décision. le juge en chef adjoint Jérome a tout d’abord statué que
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
le ministre des Transports n’était pas tenu de l’appliquer du projet qui «a permis le recensement complet des
dans l’évaluation de la demande présentée en vertu de la questions pouvant faire l’objet de préoccupations sociales
Loi sur la protection des eaux navigables et, en fait, il a environnementales, en sorte de donner à tous les citoyens,
conclu que, s’il avait invoqué le Décret sur les lignes y compris les membres de l’organisation requérante,
directrices, le ministre aurait excédé les limites de sa l’entière possibilité d’exprimer leur opinion et de se
compétence. Le raisonnement était que la Loi n’établit mobiliser en vue de contester le projet» (pp. 273 et 274).
pas d’obligation de tenir un examen des incidences Cela étant, l’application du Décret sur les lignes
environnementales, mais limite plutôt le ministre à directrices serait inutilement répétitive. Il a donc rejeté
prendre en considération seulement les facteurs touchant la demande.
la navigation. Par ailleurs, le ministre des Pêches et des
Océans n’avait pas compétence pour appliquer le Décret La Société a alors interjeté appel auprès de la Cour
sur les lignes directrices parce que son ministère n’avait d’appel fédérale.
pas entrepris de projet. Par contre, dans l’hypothèse où
le Décret sur les lignes directrices pouvait être étendu La Cour d’appel
aux projets lancés par les provinces, il ne se serait
appliqué que dans les cas où un ministère fédéral aurait Le juge Stone, s’exprimant au nom de la cour, a tout
reçu une «proposition» exigeant son approbation. d’abord fait remarquer que la construction du barrage
Comme la Loi sur les pêches ne prévoit pas de procédure sur la rivière Oldman peut avoir des répercussions
d’approbation qui serait applicable à un permis ou à une environnementales sur au moins trois domaines de
licence, le Décret sur les lignes directrices ne s’applique compétence fédérale, soit les pêcheries, les Indiens et
pas. En outre, les facteurs environnementaux ne sont les terres indiennes. Il n’est pas d’accord avec la
soulevés ni dans la Loi sur les pêches ni dans la Loi sur proposition selon laquelle le ministre des Transports
le ministère des Pêches et des Océans, L.R.C. (1985), pouvait seulement prendre en considération les facteurs
ch. F-15. touchant la navigation. Il a conclu que le projet de barrage
était visé par le Décret sur les lignes directrices et que le
Le juge en chef adjoint Jérome examine ensuite l’arrêt ministère des Transports était le «ministère responsables»
Fédération canadienne de la faune. Dans cette affaire, aux fins de l’application de ce décret, ce qui en
que j’analyserai plus à fond plus loin, la Cour d’appel déclenchait l’application. Le juge Stone s’appuie ensuite
fédérale a statué que le ministre de l’Environnement sur l’arrêt Fédération canadienne de la faune pour
devait approuver le projet en question, le barrage déclarer que le Décret sur les lignes directrices est une
Rafferty-Alameda, avant sa mise en oeuvre. Le juge en règle d’application générale et qu’il impose au ministre
chef adjoint Jérome estime que cette affaire se distingue une fonction qui «s’ajoute» à l’exercice des autres
de celle de l’espèce pour deux raisons. Premièrement, il pouvoirs qui lui sont conférés par des lois. Il n’existe
était question d’une autorisation requise aux temes de la pas de conflit entre, d’une part, le fait d’exiger dans le
Loi sur les ouvrages destinés à l’amélioration des cours Décret sur les lignes directrices qu’un examen soit
d’eau internationaux. L.R.C. (1985), ch. 1-20, effectué «le plus tôt possible au cours de l’étape de
nécessitant l’approbation préalable du ministre de planification et avant de prendre des décisions
l’Environnement; en l’espèce, l’approbation en vertu de irrévocables» et, d’autre part, le pouvoir de redressement
la Loi sur la protection des eaux navigables peut être permettant au ministre d’accorder une approbation après
accordée une fois la réalisation du projet entamée. le début des travaux, en vertu de l’art. 6 de la Loi sur la
Deuxièmement, le project de construction du barrage de protection des eaux navigables. Selon le juge Stone, ce
Rafferty-Alameda faisait intervenir le ministre de pouvoir constitue une exception à la règle générale
l’Environnement à qui la Loi sur le ministère de énoncée à l’art. 5 de la Loi selon laquelle il faut obtenir
l’Environnement imposait l’obligation de se prononcer une approbation avant le début de la construction et, dans
sur des facteurs environnementaux. l’exercice de son pourvoir discrétionnaire, rien
n’empêche le ministre d’appliquer le Décret sur les lignes
Enfin, en ce qui concerne le caractère discrétionnaire du directrices.
redressement recherché, le juge en chef adjoint Jérome
n’a pas fait droit à la demande de la Société en raison du Le juge Stone examine ensuite la question de savoir si le
retard et du chevauchement inutile qui s’ensuivraient. ministre des Pêches et des Océans était tenu d’appliquer
Entre l’approbation accordée le 18 septembre 1987 et le le Décret sur les lignes directrices. Il tente tout d’abord
début de la présente action le 21 avril 1989, il précise de déterminer si le ministre était saisi d’une «proposition»
qu’aucune mesure n’a été prise pour faire annuler cette au sens de la Loi de façon à déclencher l’application du
approbation et forcer l’application du Décret sur les Décret sur les lignes directrices. Il arrive à une
lignes directrices. À la date où la présente action a été conclusion affirmative. Selon le juge Stone, le terme
intentée, le projet était déjà complété à environ 40 pour «proposition» est un terme défini dont la portée est
100. Par ailleurs, la province d’Alberta avait déjà procédé beaucoup plus large que sa portée courante. En
à un examen exhaustif des incidences environnementales particulier il n’est pas limité à quelque chose de la nature
488
FRIENDS OF THE OLDMAN RIVER
d’une demande. Une demande n’est qu’un moyen, parmi des télécommunications canadiennes), (1989) 2 R.C.S.
d’autres, d’attirer l’attention du ministre sur l’existence 225, le juge Stone a statué que la Loi, tout
d’une «entreprise ou activité». Un ministre peut aussi particulièrement l’art. 4 examiné dans son contexte,
être mis au courant par une démarche d’un particulier permet de constater une intention de lier la Couronne.
sollicitant des mesures spécifiques aux termes d’une loi, Par ailleurs, la Loi serait privée de toute efficacité si ses
comme en l’espèce, et, puisque le ministre était au courant dispositions ne liaient pas la Couronne, puisqu’il est
d’un projet dans un domaine de compétence fédérale, il notoire qu’un grand nombre d’ouvrages obstruant des
existait une «proposition» au sens du Décret sur les lignes eaux navigables sont construits sous l’égide des
directrices. Par ailleurs, la décision du ministre de ne gouvernements.
pas intervenir faisait de lui celui qui «exerce le pouvoir
de décision», déclenchant ainsi ses obligations en vertu En conséquence, l’appel a été accueilli, l’approbation a
du Décret sur les lignes directrices. été annulée et le ministre des Transports et celui des
Pêches et des Océans ont été enjoints de se conformer
Le juge Stone examine ensuite la question du pouvoir au Décret sur les lignes directrices.
discrétionnaire et analyse les principes pertinents
applicables à une cour d’appel quant à la modification Le pourvoi devant notre Cour
d’une décision rendue par un juge de première instance
dans l’exercise d’un pouvoir discrétionnaire. Bref, une Comme je l’ai déjà mentionné, une autorisation de
cour d’appel ne serait pas justifiée de modifier en appel pourvoi a été demandée à notre Cour, qui l’a accordée,
la décision, sauf si le juge de première instance a agi sur et le Juge en chef a formulé la question constitutionnelle
le fondement d’un principe erroné ou d’une appréciation suivante le 29 octobre 1990:
fautive des faits ou si l’ordonnance prononcée n’est pas
juste et raisonnable. Entre parenthèses, et dans la note Le Décret sur les lignes directrices visant le processus
en bas de page, le juge Stone se dit d’avis que la décision d’évaluation et d’examen en matière d’environnement,
de refuser la délivrance du bref de prérogative parce que DORS/84-467, est-il général au point de cotnrevenir aux
les procédures auraient été intentées trop tard n’est pas art. 92 et 92A de la Loi constitutionnelle de 1867 et d’être,
«bien fondée dans son principe», parce que les faits par conséquent, constitutionnellement inapplicable au
expliquent le retard, particulièrement que l’intimée n’a barrage de la rivière Oldman appartenant à l’appelante
eu connaissance de la décision du ministre des Transports Sa Majesté la Reine du chef de l’Alberta?
d’accorder l’approbation que deux mois avant le début
des procédures. Par ailleurs, l’intimée avait tenté de Des interventions ont ensuite été déposées par les
contester le permis provincial délivré et ce n’est qu’à la procureurs généraux du Québec, du Nouveau-Brunswick,
veille du commencement des procédures que la Section du Manitoba, de la Colombie-Britanique, de la
de première instance de la Cour fédérale a décidé, dans Saskatchewan et de Terre-Neuve, le ministre de la Justice
l’affaire Fédération Canadienne de la faune, que le des Territoires du Nord-Ouest et un certain nombre de
ministre de l’Environnement était lié par le Décret sur groupes environnementaux, notamment le Sierra Legal
les lignes directrices. Defence Fund, l’Association canadienne du droit de
l’environnement, le Sierra Club of Western Canada,
En ce qui concerne la répétition inutile à laquelle pourrait Survie culturelle (Canada), les Amis de la Terre et
donner lieu l’octroi de la réparation demandée, le juge l’Alberta Wilderness Association, ainsi que par plusieurs
Stone a statué que le processus provincial d’examen en organisations indiennes, notamment la Fraternité des
matière d’environnement échoue sous deux aspects Indiens du Canada et l’Assemblée des premières nations,
lorsqu’on le compare au processus d’évaluation des la Nation dénée et l’Association des Métis des Territoires
incidences environnementales prévu dans le Décret sur du Nord-Ouest ainsi que le Conseil national des
les lignes directrices. Premièrement, les textes législatifs autochtones du Canada (Alberta).
provinciaux n’accordent pas la même importance à la
participation du public au processus que le Décret sur Les questions en litige
les lignes directrics. Deuxièmement, rien dans les textes
législatifs provinciaux n’exige le même degré Les parties ont présenté de diverses façons dans leur
d’indépendance que celui qui est exigé de la commission mémoire les nombreuses questions soulevées dans le
d’examen. présent pourvoi, mais je préfère les analyser dans l’ordre
suivant:
La dernière question analysée par le juge Stone et qui
est aussi soulevée dans le présent pourvoi est celle de 1. La validité législative du Décret sur les lignes
savoir si la Loi sur la protection des eaux navigables lie directrices
la Couronne du chef de l’Alberta. En se fondant sur la
décision rendue par notre Cour dans Alberta Government a. Le Décret sur les lignes directrices est-il autorisé par
Telephones c. Canada (Conseil de la radiodiffusion et l’art. 6 de la Loi sur le ministère de l’Environnement?
489
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
b. Le Décret sur les lignes directrices est-il incompat- pas l’adoption de textes réglementaires impératifs, mais
ible avec la Loi sur la protection des eaux navigables envisage seulement l’établissement de directives
et la Loi sur les pêches? purement administratives qui ne visent pas à lier
juridiquement ceux à qui elles s’adressent. Il n’y a pas
2. L’obligation des ministres de se conformer au Décret de doute que le pouvoir d’adopter des textes
sur les lignes directrices réglementaires doit être prévu dans la loi habilitante et
c’est celle-ci que l’on doit examiner pour déterminer si
a. Le paragraphe 4(1) de la Loi sur le ministère de la Loi peut appuyer l’adoption d’un texte réglementaire
l’Environnement écarte-t-il l’application aux impératif, dont la violation peut entraîner une demande
ministres du Décret sur les lignes directrices? de bref de prérogative.
b. Le Décret sur les lignes directrices s’applique-t-il Cette question a été analysée dans l’arrêt Fédération
aux-projets autres que les nouveaux projets canadienne de la faune, précité. Dans cette affaire, la
fédéraux? requérante contestait la délivrance d’un permis par le
ministre de l’Environnement en vertu de la Loi sur les
c. Les ministres sont-ils des “ministères responsables” ouvrages destinés à l’amélioration des cours d’eau
internationaux et sollicitait une ordonnance de la nature
d. La Loi sur la protection des eaux navigables lie-t- d’un certiorari annulant le permis, et un mandumus
elle la Couronne du chef de l’Alberta? enjoignant au ministre de l’Environnement de se
conformer au Décret sur les lignes directrices. Le juge
3. La question constitutionnelle Cullen de la Section de première instance a statué que le
Décret sur les lignes directrices est un texte ou un
Le Décret sur les lignes directrices est-il général au point règlement au sens du par. 2(1) de la Loi d’interprétation,
de contrevenir aux art. 92 et 92A de la Loi L.R.C. (1985) ch. 1-21:2. (1) Les définitions qui suivent
constitutionnelle de 1867, et d’être, par conséquent, s’appliquent à la présente loi.
constitutionnellement inapplicable au barrage de la
rivière Oldman appartenant à l’Alberta? «réglement» Règlement proprement dit, décret,
ordonnance, proclamation, arrêté, règle judiciaire ou
4. Le pouvoir discrétionnaire autre, règlement administratif, formulaire, tarif de droits,
de frais ou d’honoraires, lettres patentes, commission,
La Cour d’appel fédérale a-t-elle commis une erreur en mandat, résolution ou autre acte pris:
modifiant la décision de refuser d’accorder les réparations
demandées, prise par le juge en chef adjoint Jérome dans a) soit dans l’exercice d’un pouvoir conféré sous le
l’exercice de son pouvoir discrétionnaire? régime d’une loi fédérale;
La validité législative du Décret sur les lignes directrices b) soit par le gouverneur en conseil ou sous son
autorité.
Le Décret sur les lignes directrices est-il autorisé par
l’art. 6 de la Loi sur le ministère de l’Environnement? «texte»Tout ou partie d’une loi ou d’un règlement.
L’appelante l’Alberta soutient que le Décret sur les lignes Le juge Cullen conclut à la p. 322:
directrices est ultra vires parce qu’il n’est pas compris
dans les pouvoirs prévus dans le texte habilitant, soit l’art. Par conséquent, le Décret n’est pas un simple énoncé de
6 de la Loi sur le ministère de l’Environnement. Par souci politique ou de programme; il est susceptible de créer
de commodité, je reproduis la disposition en question: des droits qu’on peut faire respecter par voie de
mandamus (voir Young c. Ministre de l’emploi et de
6. Au titre de celles de ses fonctions qui portent sur la l’immigration (1987), 8 F.T.R. 218 (C.F. 1e inst.), à la p.
qualité de l’environnement, le ministre peut par arrêté, 221).
avec l’approbation du gouveneur en conseil, établir des
directrives à l’usage des ministères et organismes En Cour d’appel, le juge Hugessen s’est fondé sur les
fédéraux et, s’il y a lieu, à celui des sociétés d’Etat versions française et anglaise de l’art. 6 de la Loi sur le
énumérées à l’annexe III de la Loi sur la gestion des ministère de l’Environnement pour statuer que cette loi
finances publiques et des organismes de réglementation pouvait appuyer l’existence d’un pouvoir d’adopter un
dans l’exercice de leurs pouvoirs et fonctions. texte réglementaire impératif. «Le mot «directives» en
lui-même, a-t-il précisé, est neutre à cet égard». Quant à
Le principal motif invoqué à l’appui de la prétention que la question de savoir si les Lignes directrices avaient été
le Décret sur les lignes directrices n’est pas valide est rédigées de façon à les rendre impératives, il écrit aux
que l’emploi du terme «directrives» à l’art. 6 ne permet pp. 73 et 74:
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FRIENDS OF THE OLDMAN RIVER
En dernier lieu, rien dans le textes des Directives elles- l’Environnement, sur approbation du gouverneur en
mêmes n’indique qu’elles ne sont pas impératives; au conseil. Ce processus contraste vivement avec le
contraire, l’emploi répété du verbe «shall» [....] dans la processus habituel d’établissement de directives de
version anglaise des Directives, et particulierement aux politique interne ministérielle destinées à exercer un
articles 6, 13 et 20, montre l’intention évidente que les contrôle sur les fonctionnaires relevant de l’autorité du
Directives aient force obligatoire pour tous ceux qu’elles ministre. À mon avis, il s’agit là d’une distinction
visent, y compris le ministre de l’Environnemment lui- essentielle. Voici comment R. Dussault et L. Borgeat
même. Je suis d’acord avec lui sur ces deux points. La décrivent l’effet de cette distinction dans Traité de droit
première question dépend de l’intention du législateur. administratif (2e éd. 1984), t. I, à la p. 429:
Les lignes directrices, établies en vertu de la Loi que
notre Cour a analysée dans le Renvoi relatif à la Loi anti- Lorsqu’un gouvernement juge nécessaire de régir une
inflation, (1976) 2 R.C.S. 373, par exemple, étaient situation par des normes de comportement, il peut faire
clairement impératives. Je suis convaincu que l’art. 6 de adopter une loi ou édicter lui-même un règlement, ou
la Loi permet l’adoption de lignes directrices impératives bien procéder administrativement par voie de directives.
et que les Lignes directrices sont formulées de façon à Dans le premier cas, il doit s’astreindre aux formalités
les rendre impératives. de l’adoption des lois et des règlements; par contre, il
sait que, une fois ces formalités respectées, les nouvelles
En l’espèce, rien n’indique que le Décret sur les lignes normes entreront dans le cadre de la «légalité», et qu’en
directrices ne constitue qu’une autre forme de directive vertu de la Rule of law elles seront appliquées par les
administrative qui ne peut établir de droits exécutoires, tribunaux. Dans le second cas, c’est-à-dire s’il choisit
comme dans l’arrêt Martineau c. Comité de discipline de procéder par directives, que celles-ci soient ou non
des détenus de l’Institution de Matsqui, (1978) 1 R.C.S. autorisées législativement, il opte plutôt pour la voie
118. Dans cette affaire, la question était de savoir si l’on moins formalisée de l’autorité hiérarchique, dont les
était «légalement» soumis, au sens de l’art. 28 de la Loi tribunaux n’ont pas à assurer le respect. Attribuer à des
sur la Cour fédérale, S.C. 1970-71-72, ch. 1, à une directives l’effet de règlements, c’est aller au-delà de
directive concernant les mesures disciplinaires prises l’intention du législateur. Celui-ci ne parlant pas pour
contre les détenus, adoptée en vertu du par. ne rien dire, il faut respecter sa volonté implicite de laisser
une situation hors du cadre strict de la «légalité».
29(3) de la Loi sur les pénitenciers, S.R.C. 1970, ch. P-
6, de façon que la Cour fédérale avait compétence pour On ne doit pas examiner le terme «directives» en vase
examiner une décision disciplinaire prononcée par le clos; il faut interpréter l’art. 6 dans son ensemble. On se
Comité. Notre Cour à la majorité a statué que la décision rend alors compte que le législateur fédéral a opté pour
du comité ne se trouvait pas, au sens de l’art. 28, l’adoption d’un mécanisme de réglementation auquel on
«légalement» soumise au processus prescrit par la est soumis «légalement» et dont on peut obtenir
directive. Le juge Pigeon indique à la p. 129: l’exécution par bref de prérogative.
Il est significatif qu’il n’est prévu aucune sanction pour L’Alberta prétend également que le Décret sur les lignes
elles et, bien qu’elles soient autorisées par la Loi, elles directrices est ultra vires au motif que l’étendue du sujet
sont nettement de nature administrative et non législative. traité dans la législation déléguée va bien au-delà de ce
Ce n’est pas en qualité de législateur que le commissaire qui est autorisée par la Loi sur le ministère de
est habilité à établir des directives, mais en qualité l’Environnement. Plus particulièrement, l’Alberta
d’aministrateur. Je suis convaincu qu’il aurait l’autorité soutient que le pouvoir du ministre de prendre des
d’établir ces directives même en l’absence d’une directives au titre de celles de ses fonctions qui portent
disposition législative expresse. [Je souligne.] sur la «qualité de l’environnement» ne comprend pas
l’établissement d’un processus d’évaluation des
Il y a peu de doute qu’un ministre possède habituellement incidences environnementales, comme celui que prévoit
un pouvoir implicite d’établir des directives visant le Décret sur les lignes directrices, dans l’exécution
l’application d’une loi dont il est responsable; voir, par duquel le décideur doit tenir compte de facteurs socio-
exemple, l’arrêt Maple Lodge Farms Ltd. c. économiques. On fait valoir plutôt que la Loi permet
Gouvernement du Canada, (1982) 2 R.C.S. 2. Il est seulement l’adoption de textes réglementaires qui visent
également évident que la violation de ces directives ne strictement les questions portant sur la qualité de
donnerait lieu qu’à une sanction administrative et non l’environnement, prise dans un sens physique.
judiciaire puisque celles-ci n’ont pas force de loi.
Je ne puis accepter que le concept de la qualité de
Cependant, en l’espèce, il s’agit d’une directive qui n’est l’environnement se limite à l’environnement biophysique
simplement autorisée par une loi, mais qui doit être seulement; une telle interprétation est indûment étroite
officiellement adoptée par «arrêté» et promulguée en et contraire à l’idée généralement acceptée que
vertu de l’art. 6 de la Loi sur le ministère de l’«environnement» est un sujet diffus; voir l’arrêt R. c.
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Crown Zellerbach Canada Ltd. (1988) 1 R.C.S. 401. Ce (H.L.)). sauf si la loi l’autorise (Re Gray (1918), 57 R.C.S.
point a été énoncé par le Conseil canadien des ministres 150). Normalement, la loi fédérale doit l’emporter sur
des Ressources et de l’Environnement, à la suite du le texte réglementaire incompatible. Toutefois, en
«Rapport Brundtland» de la Commission mondiale sur matière d’interprétation, un tribunal préférera, dans la
l’environnement et le développement, dans le Rapport mesure du possible, une interprétation qui permet de
du Groupe de Travail national sur l’environnement et concilier les deux textes. Dans ce contexte,
l’économie, 24 septembre 1987, à la p. 2: l’«incompatibilité» renvoie à une situation où le texte
législatif et le texte réglementaire ne peuvent être
Nos recommandations reflètent des principes que nous conciliés; voir l’arrêt Daniels c. White, (1968) R.C.S.
partageons avec la Commission mondiale sur 517. Dans cette affaire, la règle a été énoncée à l’égard
l’environnement et le développement. Nous croyons de deux lois incompatibles dont l’une était réputée
notamment que la planification environnementale et la abroger l’autre en raison de l’incompatibilité. Toutefois,
planification économique ne peuvent pas se faire dans la justification fondamentale est la même que dans le
des milieux séparés. La croissance économique à long cas où le texte réglementaire serait incompatible avec
terme dépend de l’environnement. Elle affecte aussi une autre loi fédérale - il existe une présomption que le
l’environnement de bien des façons. Pour assurer un législateur n’a pas eu l’intention d’adopter des textes
développement économique durable et compatible avec contradictoires ou d’habiliter quiconque à le faire. Il
l’environnement, nous avons besoin de la technologie et existe également une ressemblance doctrinale avec le
de la richesse produites par une croissance économique principe de la prépondérance dans les affaires de partage
soutenue. La planification et la gestion de l’économie et constitutionnel des compétences dans lesquelles
de l’environnement doivent donc être intégrées. l’incompatibilité a aussi été définie dans le sens de
contradiction - c’est-à-dire lorsque le fait de
Certes, les conséquences éventuelles d’un changement [TRADUCTION] «se conformer à une loi signifie que
environmental sur le gagne-pain, la santé et les autres l’on enfreint l’autre»; voir l’arrêt Smith c. The Queen
préoccupations sociales d’une collectivité font partie (1960) R.C.S. 776, à la p. 800.
intégrante de la prise de décisions concernant des
questions ayant une incidence sur la qualité de L’incompatibilité invoquée est que la Loi sur la protection
l’environnement, sous réserve, bien entendu, des des eaux navigables empêche implicitement le ministre
impératifs constitutionnels, question que j’examinerai des Transports de tenir compte de facteurs autres que
plus loin. ceux touchant la navigation dans l’exercice de son
pouvoir d’approbation en vertu de l’art. 5 de la Loi, alors
Je conclus en conséquence que le Décret sur les lignes que le Décret sur les lignes directrices exige tout au moins
directrices a été validement adopté conformément à la l’établissement d’une évaluation initiale des incidences
Loi sur le ministère de l’Environnement et qu’il est de environnementales. Les ministres appelants
nature impérative. reconnaissent qu’il n’existe pas d’interdiction explicite
de tenir compte des facteurs environnementaux, mais
L’incompatibilité avec la Loi sur la protection des eaux prétendent que l’objet et l’esprit de la Loi limitent le
navigables et la Loi sur les pêches ministre des Transports à l’examen des effets possibles
d’un ouvrage sur la navigation seulement. Si les
Les appelants, l’Alberta et les ministres fédéraux, appelants ont raison, il me semble que le ministre
prétendent que le Décret sur les lignes directices est approuverait très peu d’ouvrages parce que plusieurs des
incompatible avec les exigences de la Loi sur la «ouvrages» visés par l’art. 5 ne favorisent pas la
protection des eaux navigables pour ce qui est de navigation en tant que telle, mais la gênent plutôt, ou y
l’obtention d’une approbation en vertu de l’art. 5 de cette font obstacle, en raison même de leur nature, par exemple,
loi et que celle-ci doit avoir préséance sur le Décret. Plus les ponts, les estacades, les barrages et autres choses du
particulièrement, ils disent que le ministre des Transports même genre. Si l’importance de l’incidence sur la
ne peut, en vertu de la Loi, tenir compte que des facteurs navigation constituait le seul critère, il est difficile
touchant la navigation et que le Décret sur les lignes d’envisager l’approbation d’un barrage du même type
directrices est également incompatible avec la Loi sur que celui en l’espèce. Il est donc évident que le ministre
les pêches; toutefois, pour les motifs exprimés plus loin, doit tenir compte de plusieurs éléments dans toute analyse
j’estime inutile d’analyser cette question. coûts-avantages visant à déterminer s’il est justifié dans
les circonstances de gêner d’une façon importante la
On ne met pas en doute les principes fondamentaux du navigation.
droit. Il ne peut y avoir incompatibilité entre le texte
réglementarie et la loi en vertu duquel il est adoptée Il se peut que le ministre des Transports dans l’exercise
(Belanger c. The King (1916), 54 R.C.S. 265), pas plus de ses fonctions en vertu de l’art. 5 ait toujours tenu
qu’il ne peut y en avoir avec les autres lois fédérales (R. compte de l’incidence environnementale d’un ouvrage,
& W. paul, Ltd. c. Wheat Commission, (1937) A.C. 139 tout au moins en ce qui concerne d’autres domaines de
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FRIENDS OF THE OLDMAN RIVER
compétence fédérale, comme les Indiens ou les terres façon quelconque incompatible avec l’art. 6 de Loi sur
indiennes. Bien que cela puisse être le cas, le Décret sur la protection des eaux navigables. L’article 6 vise
les lignes directrices exige officiellement qu’il le fasse principalement à habiliter le ministre qui constate qu’un
et, je ne vois rien là d’incompatible avec les fonctions ouvrage a été construit sans qu’aient été repectées les
que lui attribue l’art. 5. Comme le juge Stone de la Cour exigences de l’art. 5 à prendre des mesures pour le faire
d’appel l’a indiqué, le Décret a créé une fonction qui détruire ou toute autre mesure de redressement
“s’ajoute» à tout autre pouvoir qui lui est conféré par nécessaire; toutefois, les appelants ont attiré notre
des lois et qui n’entre pas en conflit avec ce pouvoir. À attention sur le par. 6(4) qui habilite le ministre à
mon avis, la fonction confiée au ministre en vertu du approuver un ouvrage qui a déjà été construit. Sur ce
Décret sur les lignes directrices vient en fait s’ajouter à point, je suis entièrement d’accord avec le juge Stone de
la responabilité qu’il a en vertu de la Loi sur la protection la Cour d’appel, qui mentionne à la p. 41:
des eaux navigables et il ne peut invoquer une
interprétation trop étroite des pouvoirs qui lui sont À mon avis, les dispositions de l’article 6 de Loi
conférés par des lois pour éviter de se conformer au concernent les pouvoirs de redressement que détient le
Décret sur les lignes directrices. ministre lorsqu’il détermine les mesures qu’il pourrait
prendre advenant un défaut d’obtenir une approbation
L’article 8 du Décret sur les lignes directrices reconnaît conformément à l’article 5 avant le début de la
déjà que l’évaluation des incidences environnementales construction. Le pouvoir prévu au paragraphe (4) de
ne recevra pas application s’il est incompatible avec les l’article 6 constitue une exception à la règle générale; il
dispositions d’autres textes législatifs. est entièrement discrétionnaire et se trouve clairement
subordonné à l’exigence fondamentale de l’alinéa 5(1)(a)
8. Lorsqu’une commission ou un organisme fédéral ou selon laquelle une approbation doit être obtenue avant le
un organisme de réglementation exerce un pouvoir de début de la construction. Je suis également incapable de
réglementation à l’égard d’une proposition, les présentes trouver dans le Décret sur les lignes directrices une
lignes directrices ne s’appliquent à la commission ou à disposition qui empêcherait le ministre de se conformer
l’organisme que si aucun obstacle juridique ne l’empêche à ses prescriptions dans toute la mesure du possible
ou s’il n’en découle pas de chevauchement des lorsqu’il exerce son pouvoir discrétionnaire sous le
responsabilités. régime du paragraphe 6(4) de la Loi sur la protection
des eaux navigables. Cela étant, je ne puis conclure à
Une interprétation libérale de l’application du Décret sur aucune incompatibilité et à aucun conflit entre ces deux
les lignes directrices est compatible avec les objectifs textes de la législation fédérale.
mentionnés à la fois dans le Décret et dans la loi en vertu
de laquelle il a été adopté - faire de l’évaluation des Il me paraît donc évident non seulement que le Décret
incidences environnementales un élément essentiel de sur les lignes directrices s’inscrit dans le cadre des
la prise de décisions fédérales. Une analyse similaire a pouvoirs conférés par la Loi sur le ministère de
été adoptée aux Etats-Unis relativement à la National l’Environnement, mais qu’il est entièrement compatible
Environnemental Policy Act. Comme l’affirme le juge avec la Loi sur la protection des eaux navigables. Il faut
Pratt dans l’arrêt Environmental Defense Fund, Inc. c. donc se demander si le Décret s’applique en l’espèce.
Mathews, 410 F. Supp. 336 (D.D.C. 1976), à la p. 337:
L’obligation des ministres de se conformer au Décret
[TRADUCTION] La National Environmental Policy Act sur les lignes directrices.
ne l’emporte pas sur les autres fonctions conférées par
des lois mais, dans la mesure où cette loi est conciliable Le paragraphe 4(1) de la Loi sur le ministère de
avec ces fonctions, elle vient les compléter. On ne peut l’Environnement
éviter de se conformer pleinement aux exigences de cette
loi, sauf si la conformité entrerait directement en conflit Voici le texte de l’al. 4(1)a) de la Loi sur le ministère de
avec d’autres fonctions existantes conférées par des lois. l’Environnement.
Toute autre interprétation ne tiendrait pas compte, à mon 4. (1) Les pouvoirs et fonctions du ministre s’étendent
avis, du régime législatif de protection de d’une façon générale à tous les domaines de compétence
l’environnement envisagé par le législateur lorsqu’il a du Parlement non attribués de droit à d’autres ministères
adopté la Loi sur le ministère de l’Environnement, et, ou organismes fédéraux et liés:
plus particulièrement, l’art. 6.
a) à la conservation et l’amélioration de la qualité de
Je ne crois pas non plus que l’art. 3 du Décret sur les l’environnement naturel, notamment celle de l’eau,
lignes directrices, qui exige que l’évaluation soit réalisée de l’air et du sol;
«le plus tôt possible au cours de l’étape de planification
et avant de prendre des décisions irrévocables», soit d’une L’Alberta prétend qu’en restreignant la compétence du
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
ministre de l’Environnement aux « domaines de fonctions du ministre de l’Environnement en vertu de
compétence du Parlement non attribués de droit à d’autres l’art. 6 de la Loi. Le Décret sur les lignes directrices a
ministères ou organismes fédéraux» (je souligne), l’art. été adopté en vertu de l’art. 6 et non de l’art. 5 et les
4 rend le Décret sur les lignes directrices inopérant en pouvoirs et fonctions du ministre qui y sont mentionnés
l’espèce. Parce que la Loi sur les pêches réglemente la visent à englober des domaines qu’on trouve à l’art. 4
gestion des ressources halieutiques du Canada, on ainsi qu’à l’art. 5, y compris: «la conservation et
soutient que la compétence du ministre de l’amélioration de la qualité de la environnement» (al.
l’Environnement a été écartée à l’égard de toutes les 4(1)a)). L’article 6 n’est donc pas limité aux nouveaux
questions concernant l’habitat du poisson. Cet augument projets, programmes et activités. L’article 5 ne fait que
peut être tranché rapidement. Il est fondé sur une décrire les fonctions minimales du ministre en vertu de
interprétation tout à fait erronée des «domaines» visés l’art. 4, lequel est beaucoup plus vaste. C’est là que l’on
par les divers textes législatifs. Le Décret sur les lignes trouve la véritable gamme des fonctions du ministre en
directrices établit une méthode d’évaluation des matière de qualité de l’environnement relativement à
incidences environnementales à l’intention de tous les laquelle des directives peuvent être établies.
ministères fédéraux dans l’exercice de leurs pouvoirs et
dans l’exécution de leurs obligations et fonctions, alors Les ministères responsables
que la Loi sur les pêches traite de la question de fond de
la protection du poisson et de son habitat. Il existe certes Au coeur des moyens invoqués par les ministres appelants
un lien entre les deux, mais la différence essentielle est est la question de savoir si le Décret sur les lignes
que l’une porte fondamentalement sur la procédure, alors directrices, de par son libellé, est applicable au projet de
que l’autre porte sur le fond. L’analyse proposée par les construction d’un barrage sur la rivière Oldman.
appelants rendrait pratiquement vide de sens le pouvoir L’Alberta n’a pas soulevé cette question et les ministres
conféré par l’art. 6 de la Loi sur le ministère de reconnaissent que le ministère des Transports est un
l’Environnement. ministère «responsable« mais ils soutiennent que le
Décret sur les lignes directrices est incompatible avec la
Les nouveaux projets fédéraux Loi sur la protection des eaux navigables et ne peut
recevoir application. J’ai conclu que les deux textes sont
L’Alberta s’attaque ensuite à la prétendue application du compatibles pour les motifs déjà énoncés; il n’existe donc
Décret sur les lignes directrices à des propositions autres plus de controverse entre les parties quant à savoir si le
que les «nouveaux projets, programmes et activités ministre des Transports est régi par les dispositions du
fédéraux» visés au sous-al.5a(ii) de la Loi sur le ministère Décret sur les lignes directrices. En ce qui concerne le
de l’Environnement: ministre des Pêches et des Océans, on soutient qu’il n’est
pas tenu d’invoquer l’application du Décret sur les lignes
5. Dans le cadre des pouvoirs et fonctions que lui confère directrices en l’espèce parce qu’il n’exerce pas un
l’article 4, le ministre: «pouvoir de décision» conformément aux dispositions
pertinentes de la Loi sur les pêches. Puisque la question
a) lance, recommande ou entreprend à son initiative de l’application du Décret sur les lignes directrices a
et coordonne à l’échelle fédérale des programmes donné lieu à un profond désaccord devant les tribunaux
visant à: d’instance inférieure, j’estime nécessaire d’analyser tout
d’abord de le Décret sur les lignes directrices pour
.... interpréter les dispositions qui en déterminent
l’application.
(ii) faire en sorte que les nouveaux projets, programmes
et activités fédéraux soient, dès les premières étapes À mon avis, le point de départ est l’art. 6 du Décret sur
de planification, évalués en fonction de leurs risques les lignes directrices qui énonce son principe
pour la qualité de l’environnement naturel, et que d’application. Il vaut la peine de le reproduire de
ceux d’entre eux dont on aura estimé qu’ils nouveau:
présentent probablement des risques graves fassent
l’objet d’un réexamen dont les résultats devront être 6. Les présentes lignes directrices s’appliquent aux
pris en considération...[Je souligne.] propositions
On soutient que le libellé de ce sous-alinéa permet a) devant être réalisées directement par un ministère
d’établir que le législateur avait l’intention de restreindre responsable;
l’application du Décret sur les lignes directrices aux
nouveaux projets fédéraux et que celui-ci ne saurait en b) pouvant avoir des répercussions environnementales
conséquence s’appliquer à un projet parrainé par une sur une question de compétence fédérale;
province. À mon avis, l’Alberta cherche encore ici à
interpréter d’une façon trop étroite l’étendue des c) pour lesquelles le gouvernement du Canada
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FRIENDS OF THE OLDMAN RIVER
s’engage financièrement; ou department» est de désigner de façon précise, une fois
établi que le gouvernement fédéral participe à la prise de
d) devant être réalisées sur des terres administrées par décisions, l’autorité, particulière au sein du gouvernement
le gouvernement du Canada, y compris la haute mer. du Canada qui sera responsable de la mise en oeuvre du
[Je souligne.] Décret sur les lignes directrices.
On ne peut sérieusement mettre en doute que le projet Dans l’arrêt Angus c. Canada (1990) 3 C.F. 410 (C.A.),
de barrage sur la rivière Oldman peut avoir des le juge Décary a adopté une analyse similaire relativement
répercussions environnementales sur une question de à l’interprétation du Décret sur les lignes directrices, mais
compétence fédérale, notamment les domaines visés par dans un contexte différent. Dans cette affaire, la question
l’art. 91 de la Loi constituionnelle de 1867 déjà en litige était de savoir si le Décret sur les lignes
mentionnés, soit la navigation, les Indiens, les terres directrices s’appliquait à un décret pris par le gouverneur
réservées aux Indiens et les pêcheries de l’intérieur. En en conseil en vertu de l’art. 64 de la Loi de 1987 sur les
conséquence, le Décret sur les lignes directrices transports nationaux, L.R.C. (1985), ch. 28 (3e suppl.),
s’applique si le projet en l’espèce constitue une qui ordonnait à VIA Rail d’éliminer ou de réduire certains
«proposition» au sens de l’art. 2: services voyageurs. Bien que cette affaire ait porté sur
la question précise de savoir si le gouverneur en conseil
2. Les définitions qui suivent s’appliquent aux présentes était tenu de se conformer au Décret sur les lignes
lignes directrices. directrices, ce qui n’est pas soulevé en l’espèce, et que
le juge Décary ait été dissident sur ce point, l’analyse
«proposition» S’entend en outre de toute entreprise ou globale qu’il fait, à la p. 434, de l’application du Décret
activité à l’égard de laquelle le gouvernement du Canada sur les lignes directrices est utile:
participe à la prise de décisions. [Je souligne.]
Le juge de première instance et les intimés ont mis
Si une telle proposition existe, les art. 3 et 10 du Décret l’accent sur les mots «ministère responsable» qui ont trait
sur les lignes directrices confient l’application de la à l’administration des Lignes directrices. Je mettrais
méthode d’évaluation au “ministère responsables», qui plutôt l’accent sur les mots «proposition» et
doit s’assurer d’une part, d’examiner à fond les «gouvernement du Canada» qui ont trait au «champ
répercussions environnementales de toute proposition d’application» des Lignes directrices. Rien n’exige dans
dont il est saisi et d’autre part, de soumettre cette la définition du mot «proposition» que celle-ci soit faite
proposition à une évaluation initiale afin de déteminer la par un ministère responsable, au sens des Lignes
nature des effets néfastes qu’elle peut avoir sur directrices. L’intention du rédacteur semble être que les
l’environnement. L’article 2 définit aussi l’entité Lignes directrices doivent s’appliquer chaque fois qu’une
désignée comme «ministère responsable»: activité peut avoir des répercussions environnementales
sur une question de compétence fédérale et quel que soit
2. Les définitions qui suivent s’appliquent aux présentes le preneur de décision au nom du gouvernment, qu’il
lignes directrices. s’agisse d’un ministère, d’un ministre ou du gouverneur
en conseil, et cela devient alors une question purement
...... pratique, lorsque le preneur de décision ultime n’est pas
un ministère, de déterminer quel ministère ou ministre
«ministère responsable» Ministère qui, au nom du est le preneur de décision originel ou celui qui va
gouvernement du Canada, exerce le pouvoir de décision effectivement mettre la décision à exécution, car il se
à l’égard d’une proposition. [Je souligne.] trouve toujours un ministère ou un ministre qui est présent
«à l’étape de planification» et «avant» que ne soient prises
On soutient que, dans la version anglaise, l’emploi de «des décisions irrévocables» ou qui voit à la «réalisation
l’article défini «the» dans la définition de «initiating directe» de la proposition.
department», par opposition à l’emploi de l’article
indéfini «a» dans la définition du terme «proposal», peut Puisque cette question n’est pas soulevée, je ne vois pas
indiquer une intention de limiter l’application du Décret l’intérêt de faire des observations sur l’application au
sur les lignes directrices aux projets sur lesquels le gouverneur en conseil du Décret sur les lignes directrices;
gouvernment fédéral exerce le principal ou le seul pouvoir toutefois, le passage précité permet de bien saisir
de décision; voir, par exemple, C.J. Gillespie, l’essence de son application.
«Enforceable Rights from Administrative Guidelines?»
(1989-1990), 3. C.J.A.L.P. 204. Je ne suis pas d’accord Je ne veux pas dire pour autant que le Décret sur les
avec cette interprétation. À mon avis, la seule lignes directrices reçoit application chaque fois qu’un
conséquence qu’entraîne le fait de passer de l’emploi de projet peut comporter des répercussions
l’article indéfini dans la définition du terme «proposal» environnementales sur un domaine de compétence
à celui de l’article défini dans la définition de «initiating fédérale. Il doit tout d’abord s’agir d’une «proposition»
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
qui vise une «entreprise ou activité à l’égard de laquelle la Loi sur la protection des eaux navigables impose une
le gouvernement du Canada participe à la prise de obligation positive de réglementation au ministre des
décision». (Je souligne.) À mon avis, l’interprétation Transports. Cette loi a mis en place un mécanisme de
qu’il faut donner à l’expression «participe à la prise de réglementation qui prévoit qu’il est nécessaire d’obtenir
décisions» est que le gouvernement fédérale, se trouvant l’approbation du ministre avant qu’un ouvrage qui gêne
dans un domaine relevant de sa compétence en vertu de sérieusement la navigation puisse être placé dans des eaux
l’art. 91 de la Loi constitutionnelle de 1867, doit avoir navigables ou sur, sous, au-dessus ou à travers de telles
une obligation positive de réglementation en vertu d’une eaux. L’article 5 accorde au ministre le pouvoir de fixer
loi fédérale relativement à l’entreprise ou à l’activité les modalités qu’il juge à propos lorsqu’il approuve un
proposée. On n’a pas pu vouloir que le Décret sur les ouvrage; si le propriétaire ne se conforme pas aux
lignes directrices soit invoqué chaque fois qu’il existe modalités, le ministre peut lui ordonner d’enlever
certaines possibilités de répercussions environnementales l’ouvrage ou de le modifier. Pour ces motifs, je conclurais
sur un domaine de compétence fédérale. En qu’il s’agit ici d’une «proposition» dont le ministre des
conséquence, l’expression «participe à la prise de Transports est un «ministère responsable».
décisions» dans la définition du terme «proposition» ne
devrait pas être interprétée comme ayant trait à des La Loi sur les pêches ne renferme cependant pas de
questions relevant généralement de la compétence disposition de réglementation équivalente qui serait
fédérale. Cette expression signifie plutôt une obligation applicable au projet. L’article 35 interdit d’exploiter des
légale. Si cette obligation existe, il s’agit alors de ouvrages ou entreprises entraînant la détérioration, la
déterminer qui est le «ministère qui exerce le pouvoir de destruction ou la perturbation de l’habitat du poisson, et
décision à l’égard de la proposition et qui doit donc l’art, 40 assortit cette interdiction d’une sanction pénale.
entamer le processus d’évaluation visé par le Décret sur En vertu du par. 37(1), le ministre des Pêches et des
les lignes directrices. Océans peut demander des renseignements à quiconque
exploite ou se propose d’exploiter des ouvrages ou
La nécessité d’une obligation positive de réglementation entreprises de nature à entraîner la détérioration, la
pour que le gouvernement du Canada «participe à la prise perturbation ou la destruction de l’habitat du poisson.
décisions» ressort d’autres dispositions« du Décret sur Toutefois, cette demande n’a pas pour objet la mise en
les lignes directrices, qui laissent entendre que le oeuvre d’une procédure de réglementation; elle aide
ministère responsable doit détenir un certain pouvoir de simplement le ministre à exercer le pouvoir législatif
réglementation sur le projet. Par exemple, l’art. 12 spécial, qui lui a été délégué en vertu du par. 37(2),
dispose que: d’autoriser une exception à l’interdiction générale. En
voici le libellé:
12. Le ministère responsable examine ou évalue chaque
proposition à l’égard de laquelle il exerce le pouvoir de 37.....
décision, afin de déterminer:
(2) Si, après examen des documents et des
f) si les effets néfastes que la proposition peut avoir sur renseignements reçus et après avoir accordé aux
l’environnement sont inacceptables, auquel cas la personnes qui les lui ont fournis la possibilité de lui
proposition est soit annulée, soit modifiée et soumise à présenter leurs observations, il est d’avis qu’il y a
un nouvel examen ou évaluation initiale. infraction ou risque d’infraction au paragraphe 35(1) ou
à l’article 36, le ministre ou son délégué peut par arrêté
L’article 14: et sous réserve des réglements d’application de l’alinéa
(3)b) ou, à défaut, avec l’approbation du gouverneur en
14. Le ministère responsable voit à la mise en application conseil:
de mesures d’atténuation et d’indemnisation, s’il est
d’avis que celles-ci peuvent empêcher que les effets a) soit exiger que soient apportées les modifications
néfastes d’une proposition sur l’environnement prennent et adjonctions aux ouvrages ou entreprises, ou aux
de l’ampleur. documents s’y rapportant, qu’il estime nécessaires
dans les circonstances;
Ces dispositions amplifient le pouvoir de réglementation
que doit avoir le gouvernement du Canada en vertu d’une b) soit restreindre l’exploitation de l’ouvrage ou de
loi fédérale avant de pouvoir participer à la prise de l’entreprise.
décisions.
Il peut en outre, avec l’approbation du gouverneur en
si on applique cette interprétation à l’espèce, on se rendra conseil dans tous les cas, ordonner la fermeture de
compte que le projet de barrage sur la rivière Oldman l’ouvrage ou de l’entreprise pour la période qu’il juge
peut être qualifié de proposition dont le ministre des nécessaire en l’occurrence. [Je souligne.]
Transports seul est le ministère responsable. À mon avis,
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FRIENDS OF THE OLDMAN RIVER
À mon avis, le fait que le ministre possède le pouvoir déduction nécessaire parce que la loi [TRADUCTION]
discrétionnaire de demander des renseignements visant «ne peut avoir une efficacité raisonnable si elle ne lie
à l’aider dans l’exercice d’une fonction législative ne pas la Couronne».
signifie pas qu’il participe à la prise de décisions au sens
du Décret sur les lignes directrices. Alors que le ministre Le Conseil privé a reconnu que la règle de l’immunité
des Transports a une responsabilité en vertu de la Loi de la Couronne souffre au moins une exception, la
sur la protection des eaux navigables à titre d’autorité déduction nécessaire. Lord du Parcq explique cette
réglementante, le ministre des Pêches et des Océans a, exception, à la p. 61:
en vertu de l’art. 37 de la Loi sur les pêches, un pouvoir
législatif spécial limité qui ne constitue pas une obligation [TRADUCTION] C’est-à-dire que, s’il ressort du texte
positive de réglementation. Pour ce motif, je ne crois même de la Loi que le législateur entendait lier la
pas que la demande de bref de mandamus visant à forcer Couronne, le résultat est le même que si cette demière
le ministre à agir soit bien fondée. était expressément mentionnée. Il faut donc en déduire
que la Couronne, en promulguant la loi, a accepté d’être
L’immunité de la Couronne liée par ses dispositions.
Selon l’Alberta, même si on pouvait dire que le Décret Leurs Seigneuries ont ensuite analysé l’argument, fondé
sur les lignes directrices s’applique de lui-même au sur une jurisprudence antérieure, qu’une loi adoptée pour
projet, la Couronne du chef de l’Alberta n’est pas liée le bien public doit recevoir une interprétation qui lie la
par la Loi sur la protection des eaux navigables. Dès Couronne parce que cette loi vise manifestement à
lors, la participation «à la prise de décisions», au sens du garantir le bien-être public. Cette prétention a été rejetée
Décret sur les lignes directrices, par le gouvernement pour le simple motif que toutes les lois sont présumées
du Canada, ne saurait avoir une incidence sur la province. être adoptées pour le bien public. Toutefois, cela ne
Les ministres appelants conviennent que la Loi ne lie signifiait pas nécessairement que l’objet d’un texte
pas la Couronne du chef d’une province, mais prétendent législatif ne présente aucune pertinence (à la p. 63):
que l’Alberta a renoncé à cette immunité en présentant
une demande d’approbation en vertu de la Loi. [TRADUCTION] Leurs Seigneuries préferent dire que
l’objet apparent de la loi constitue un élément, et peut
Le point de départ de cet argument est l’art.17 de la Loi être un élément important, à examiner lorsque l’on
d’interprétation qui codifie la présomption que la prétend que l’intention était de lier la Couronne. Si l’on
Couronne n’est pas liée par une texte législatif. peut affirmer qu’au moment où la Loi a été adoptée et a
reçu la sanction royale, il ressortait clairement de son
17. Sauf indication contraire y figurant, nul texte ne lie texte qu’elle serait privée de toute efficacité si elle ne
Sa Majesté ni n’a d’effet sur ses droits et prérogatives. liait pas la Couronne, on peut déduire que la Couronne a
accepté d’être liée.
Toutes les parties intéressées reconnaissent que la Loi
sur la protection des eaux navigables ne prévoit pas Comme je l’ai mentionné dans l’arrêt Sparling c. Québec
expressément qu’elle lie la Couronne; il reste donc à (Caisse de dépôt et placement du Québec, (1988) 2 R.C.S.
déterminer si la Couronne est liée par déduction 1015, à la p. 1022, certains doutes ont été exprimés dans
nécessaire. l’arrêt R. c. Eldorado Nucléaire Liée, (1983) 2 R.C.S. 55),
et dans l’arrêt Sa Majesté du chef de la province de
Il est utile d’examiner tout d’abord la situation en l’Alberta c. Commission canadienne des transports (1978)
common law. L’arrêt de principe en la matière est 1 R.C.S. 61 (cf. R. c. Ouellette, (1980) 1 R.C.S. 568),
Province of Bombay c. Municipal Corporation of quant à savoir si l’exception de la déduction nécessaire
Bombay, (1947) A.C. 58, rendu par le Conseil privé. Dans survivait à la révision de ce qui est maintenant l’art. 17 de
cette affaire, il s’agissait de savoir si la province de la Loi d’interprétation, effectuée en 1967. On aurait
Bombay était exemptée de l’application de la City of également pu se demander si le critère de l’absence de
Bombay Municipal Act, 1888, laquelle conférait à la ville toute efficacité de la loi énoncé dans l’arrêt Bombay était
le pouvoir d’installer des conduites d’eau déterminant dans la décision que la Couronne était liée
[TRADUCTION] «sur, à travers ou sous tout bien-fonds par déduction nécessaire. Le professeur Hogg dans son
situé à l’intérieur des limites de la ville». La province ouvrage initulé Liability of the Crown (2e éd. 1989)
était propriétaire d’un bien-fonds sous lequel on se soutient que l’exception de la déduction nécessaire
proposait d’installer une conduite d’eau et elle s’opposait énoncée au début de l’arrêt Bombay renvoie à une analyse
aux plans de la ville, sauf si celle-ci acceptait de se contextuelle de la loi au terme de laquelle on peut dégager
conformer à certaines conditions, jugées inacceptables une intention de lier la Couronne par déduction logique;
par la ville. Même si le texte législatif ne renfermait pas il s’agit donc là d’une espèce différente de déduction
de dispositions expresses liant la Couronne, la Haute nécessaire de celle qui existe lorsque l’objet de la loi serait
Cour de Bombay a statué que la Couronne était liée par privé de toute efficacité. Il affirme à la p. 210:
497
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
[TRADUCTION] Ce qui est envisagé dans ce passage pas des conditions qui ont existé pendant de nombreuses
est qu’une loi, en l’absence de termes qui lient années après l’adoption de la Loi, mais de l’état de chose
expressément la Couronne, peut contenir des renvois à qui existait en 1888 ou que la législature aurait pu prévoir.
la Couronne ou à une activité gouvernementale, qui
n’auraient aucun sens sauf si la Couronne était liée. Si J’examinerai tout d’abord les circonstances qui existaient
ces indications dans le texte sont suffisamment claires, au moment de l’adoption de la loi, en tenant compte du
les tribunaux concluront que la présomption a été réfutée fait que le sujet général de la loi porte sur la navigation.
et que la Couronne est liée.
Ce faisant, il est utile de passer en revue certains des
Toutefois, notre Cour a dissipé toute incertitude quant à principes fondamentaux du droit maritime dans ce
la situation du droit dans l’arrêt récent Alberta domaine, notamment ceux qui se rapportent aux eaux
Government Telephones, précité. Après une analyse de navigables. Il importe de se rappeler que le droit de la
la jurisprudence, le juge en chef Dickson conclut à la p. navigation au Canada comporte deux dimensions
281]: fondamentales - l’ancien droit public de navigation de la
common law et la compétence constitutionnelle sur la
À mon avis, compte tenu des affairs PWA et Eldorado, navigation - qui sont nécessairement interdépendantes
la portée des termes «mentionnée ou prévue» doit en vertu du par. 91(10) de la Loi constitutionnelle de 1867
s’interpréter indépendamment de la règle de common law qui confère au Parlement une compétence législative
supplantée. Toutefois, le réserves exprimées dans l’arrêt exclusive sur la navigation.
Bombay, précité, sont fondées sur de bons principes
d’interprétation que le temps n’a pas complètement La common law d’Angleterre prévoit depuis longtemps
effacés. Il me semble que les termes «mentionnée ou que le public a un droit de navigation dans les eaux de
prévue» contenus à l’art. 16 [maintenant l’art. 17 de la marée; toutefois, bien que les eaux sans marée puissent
Loi d’interprétation] peuvent comprendre: (1) des termes être navigables, le public n’a pas le droit d’y naviguer,
qui lient expressément la Couronne («Sa Majesté est liée» sous réserve de certaines exceptions qui ne sont pas
) ; (2) une intention claire de lier qui, selon les termes de pertinentes en l’espèce. Au Canada, la distinction entre
l’arrêt Bombay, «ressort du texte même de la loi», en les eaux de marée et les eaux sans marée a été abandonnée
d’autres termes, une intention qui ressorte lorsque les il y a longtemps, sauf dans les provinces de l’Atlantique
dispositions sont interprétées dans le contexte d’autres où des considérations différentes pourraient bien
dispositions, comme dans l’arrêt Ouellette, précité; et (3) s’appliquer; voir l’arrêt In Re Provincial Fisheries (1896),
une intention de lier lorsque l’objet de la loi serait «privé» 26 R.C.S. 444; pour un sommaire des arrêts applicables,
[...] de toute efficacité» si l’Etat n’était pas lié ou, en voir mon ouvrage intitulé Water Law in Canada (1973),
d’autres termes, s’il donnait lieu à une absurdité (par aux pp. 178 à 180. La règle est plutôt la suivante: si les
opposition à un simple résultat non souhaité). Ces trois eaux sont navigables, que ce soient des eaux de marée
éléments devraient servir de guide lorsqu’une loi ou sans marée, il existe un droit public de navigation.
comporte clairement une intention de lier la Couronne. C’est le cas en Alberta où la Division d’appel de la Cour
suprême, dans l’application de l’Acte des territoires du
À mon avis, ce passage fait clairement ressortir qu’une Nord-Ouest, S.R.C. 1886, ch. 50, a à bon droit statué
analyse du contexte d’une loi peut révéler une intention dans l’arrêt Flewelling c. Johnston (1921), 59 D.L.R. 419,
de lier la Couronne si cette conclusion s’impose que la règle anglaise ne pouvait être appliquée à la
immanquablement par déduction logique. province. Les parties ne contestent pas que la rivière
Oldman est en fait navigable.
On ne doit cependant pas effectuer cette analyse dans
l’abstrait. En conséquence, il ne faudrait pas interpréter La nature du droit public de navigation a donné lieu à
le «contexte» pertinent de façon trop restreinte. Le beaucoup de jurisprudence au cours des années, mais
contexte doit plutôt englober les circonstances qui ont certains principes sont toujours valables. Premièrement,
donné lieu à l’adoption de la loi et la situation qu’elle le droit de navigation n’est pas un droit de propriété, mais
voulait corriger. Ce point de vue est compatible avec le simplement un droit public de passage; voir l’arrêt Orr
raisonnement énoncé dans l’arrêt Bombay comme Ewing c. Colquhoun (1877), 2 App. Cas. 839 (H.L.), à la
l’indiquent les passages susmentionnés dans lesquels le p. 846. Ce n’est pas un droit absolu, mais il doit être
critère de la déduction nécessaire est exprimé par rapport exercé d’une façon raisonnable de manière à ne pas
au moment de l’adoption de la loi. En fait, l’analyse empiéter sur les droits équivalents des autres. Il est tout
adoptée par la Haute Cour de Bombay a été critiquée par particulièrement important en l’espèce de préciser que
le Conseil privé pour ce motif même, à la p. 62: le droit de navigation l’emporte sur les droits du
propriétaire du lit, même si le propriétaire est la
[TRADUCTION] Même si la Haute Cour a interprété Couronne. Par exemple, dans l’arrêt Attorney-General
correctement le principe, sa façon de l’appliquer permet c. Johnson (1819), 2 Wils. Ch. 87, 37 E.R. 240,
de soulever l’objection qu’elle aurait dû tenir compte non concernant l’action d’une partie civile visant à éliminer
498
FRIENDS OF THE OLDMAN RIVER
une nuisance publique causant une obstruction dans la au Parlement une compétence législative exclusive sur
Tamise et sur une voie publique le long de la rive, le lord la navigation. Notre Cour a clairement établi ce point
chancelier dit à la p. 246: dans l’arrêt Queddy River Driving Boom Co. c. Davidson
(1883), 10 R.C.S. 222. Dans cette affaire, le demandeur
[TRADUCTION] J’estime qu’il n’est aucunement cherchait à obtenir une injonction visant à empêcher la
pertinent que le titre de propriété du sol entre la laisse société défenderesse de construire des jetées et des
des hautes eaux et celle des basses eaux appartienne à la estacades dans la rivière Queddy au Nouveau-Brunswik.
Couronne ou à la ville de Londres, ou que la ville de La défenderesse invoquait sa loi habilitante, adoptée par
Londres possède le droit d’administration, permettant la législature provinciale, qui autorisait certaines entraves
ainsi de surveiller toute utilisation incorrecte du sol à la navigation. La seule question en litige devant la
lorsque la Couronne en détient le titre, ou que lord Cour était le pouvoir de la législature provinciale
Grosvenor ou M. Johnson possède un titre dérivé obtenu d’adopter la loi constitutive de la défenderesse. Le juge
par concession de quiconque a le pouvoir de le faire [...] en chef Ritchie conclut, à la p. 232:
À mon avis, la Couronne n’a pas le droit de créer une
nuisance lorsqu’elle utilise son droit de propriété du [TRADUCTION] .... la question juridique dans cettte
terrain situé entre la laisse des basses eaux et celle des affaire, savoir qui du Parlement du Dominion ou de
hautes eaux ou de placer sur ce terrain quelque chose l’Assemblée législative du Nouveau-Brunswick possède
qui constituera une nuisance pour les sujets de la le pouvoir législatif d’autoriser l’obstruction, au moyen
Couronne. Si la couronne ne possède pas ce droit, elle de jetées et d’estacades, d’une rivière à marée publique
ne pouvait pas l’accorder à la ville de Londres, et la ville et navigable portant ainsi gravement atteinte au droit
de Londres ne pouvait pas le transférer à qui que ce soit. public de navigation dans ces eaux. Il n’est pas contesté
en l’espèce que la loi gênait la navigation dans la rivière.
Notre Cour est arrivée à la même conclusion dans l’arrêt
Wood c. Esson (1884), 9 R.C.S. 239. Dans cette affaire, Je crois qu’il ne fait aucun doute que c’est le Parlement
les demandeurs avaient allongé leur quai et entravaient du Dominion qui a la compétence législative exclusive
ainsi l’accès au quai du défendeur. Celui-ci fit enlever sur les eaux navigables, comme celles visées en l’espèce.
la partie des travaux qui obstruait l’accès à son quai; les Tout ce qui touche la navigation et les expéditions par
demandeurs ont ensuite intenté une poursuite pour eau semble avoir été soigneusement conféré au Parlement
violation de propriété au motif qu’ils jouissaient, en vertu du Dominion par l’A.A.N.B.
d’une concession par la province de la Nouvelle-Ecosse,
du titre de propriété du sol à l’endroit dans le port où le Ces arrêts ont donné lieu à l’adoption de textes législatifs
quai était construit. La Cour a statué que le défendeur qui ont finalement abouti à la Loi sur la protection des
avait le droit d’éliminer l’obstacle créé par l’obstruction eaux navigables. Il est pertinent ici de mentionner l’un
à la navigation dans le port. Le juge Strong indique à la des textes législatifs - l’Acte concernant les bômes et
p. 243: autres ouvrages établis en eaux navigables soit sous
l’autorité d’actes provinciaux soit autrement, S.C. 1883,
[TRADUCTION] Le titre de propriété du sol n’autorisait ch. 43 - qui a précédé la Loi codifiée qui devait régir
pas les demandeurs à allonger leur quai de façon à créer tous les aspects de la protection des eaux navigables.
une nuisance publique qui, selon la preuve, constituait L’article premier dispose que:
une obstruction à la navigation dans le port car la
Couronne ne peut concéder le droit d’entraver ainsi les 1. l’aucun bôme, barrage ou aboiteau ne sera établi
eaux navigables; seule une loi peut déterminer que
quelque chose qui gêne la navigation n’est pas une [missing text from the original text]...
nuisance. (Je souligne.)
nance des Territoires du Nord-Ouest ou du District de
Ce passage fait également ressortir un autre aspect de la Kéwatin, ou autrement, de manière à gêner la navigation,
suprématie du droit public de navigation: ce droit ne peut à moins que l’emplacement n’en ait été approuvé, - et
être modifié ou éteint que par une loi habilitante, et la que l’ouvrage n’ait été construit et ne soit maintenu en
concession d’un bien-fonds par la Couronne ne peut état conformément à des plans qui auront été approuvés
conférer le droit de gêner la navigation; voir aussi les - par le Gouverneur général en conseil.
arrêts The Queen c. Fisher (1891), 2 Ex. C.R. 365; In Re
Provincial Fisheries, à la p. 549, le juge Girouard; et La Loi prévoyait aussi que les ouvrages existants qui
Reference re Waters and Water-Powers (1929) R.C.S. 200 gênaient la navigation, créant ainsi une nuisance
publique, pouvaient être légalisés s’ils étaient approuvés
Par ailleurs, les provinces ne sont pas habilitées, sur le par le gouverneur général en conseil.
plan constitutionnel, à adopter une loi autorisant
l’établissement d’un obstacle à la navigation puisque le Cette loi n’est qu’un des textes où le Parlement a exercé
par. 91(10) de la Loi constitutionnelle de 1867 confère sa compétence pour empêcher la construction ou la
499
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
continuation d’obstacles à la navigation. Il avait déjà soulevées par le juge Stone, savoir que les provinces font
notamment légiféré à l’égard des ponts (Acte concernant partie des organismes susceptibles de participer à des
les ponts établis en vertu d’actes provinciaux sur des projets, par exemple, la construction de ponts, qui peuvent
eaux navigables, S.C. 1882, ch. 37), de l’enlèvement gêner la navigation, ce qui était le cas au Canada bien
d’obstructions et d’épaves dans les rivières navigables avant l’adoption de la Loi; toutefois, je m’intéresse
(Acte pour pourvoir à l’enlèvement d’obstructions également à des considérations encore plus
provenant de naufrages et autres causes semblables dans fondamentales, savoir la nature de la navigation au
les rivières navigables du Canada, et pour d’autres objets Canada et la compétence législative du législateur fédéral
relatifs aux naufrages, S.C. 1874, ch. 29) et des effluents sur ce domaine.
des moulins à scie dans les eaux navigables (Acte à l’effet
de mieux protéger les cours d’eau et rivières navigables, Certains cours d’eau navigables constituent une partie
S.C. 1873, ch. 65). cruciale des réseaux de transport interprovincial,
essentiels aux échanges internationaux et à l’activité
La codification a commencé avec l’adoption d’un Acte commerciale au Canada. En ce qui concerne l’opinion
concernant certaines constructions dans et sur les eaux contraire, il n’est pas très logique de prétendre qu’il serait
navigables, S.C. 1886, ch. 35, ayant trait à la contruction possible d’atteindre en quoi que ce soit l’objectif du
de tout «ouvrage» dans les eaux navigables et de la loi Parlement dans l’exercice de sa compétence sur
d’accompagnement intitulée Acte concernant la l’administration des eaux navigables si la Couronne
protection des eaux navigables, S.C. 1886, ch. 36, portant n’était pas liée par l’effet de la Loi. La réglementation
sur les obstructions provenant de naufrages dans les eaux des eaux navigables doit être analysée dans son ensemble
navigables. L’article premier de l’Acte concernant et ce serait une situation absurde si la Couronne du chef
certaines constructions dans et sur les eaux navigables d’une province pouvait impunément entraver la
définissait succinctement le terme «ouvrages»: navigation à un endroit le long d’un cours d’eau
navigable, alors que le Parlement travaille assidûment à
1. Dans le présent acte, à moins que le contexte n’exige en préserver la navigabilité à un autre.
une interprétation différente, l’expression «ouvrage»
signifie et comprend tout pont, estacade, barrage, La nécessité en pratique d’avoir un régime de
aboiteau, quai, dock, jetée, pilier ou autre construction, réglementation uniforme pour les eaux navigables a déjà
et leurs approches ou avenues et autres travaux été reconnue par notre Cour dans l’arrêt Whitbread c.
nécessaires ou s’y rattachant: Walley, (1990) 3 R.C.S. 1273; le raisonnement présenté
dans cet arrêt en faveur d’un régime de règles de droit
[Missing text from the original text] maritime uniformes relevant de la compétence fédérale
est également applicable en l’espèce. Aux pages 1294
Mon collègue le juge Stevenson a cependant fait mention et 1295, on dit:
de la déclaration du juge en chef Fitzpatric dans
Champion c. City of Vancouver, (1918) 1 Wl.W.R. 216 Mise à part la jurisprudence, la nature même des activités
(C.S.C.), selon laquelle la Loi ne faisait qu’˙accorder une relatives à la navigation et aux expéditions par eau, du
permission et n’empêchait pas un tiers d’intenter une moins telles qu’elles sont exercées ici, fait que des règles
action pour atteinte au droit public de navigation malgré de droit maritime uniformes s’appliquant aux voies
l’approbation de l’ouvrage par le Ministre. Toutefois, navigables intérieures sont nécessaires en pratique. La
cette déclaration n’était qu’incidente. Il s’agissait de plupart des activités relatives à la navigation et aux
déterminer si la structure en cause portait atteinte au droit expéditions par eau ayant lieu sur les voies navigables
d’accès privé des demandeurs. Les deux autres juges de intérieures sont nécessaires en pratique. La plupart des
la majorité ont limité leurs remarques à cette question et actictivités relatives à la navigation et aux expéditions
les deux juges de la minorité n’ont pas, à plus forte raison, par eau ayant lieu sur les voies navigables intérieures du
approuvé la déclaration. Pour ma part, je préfère Canada sont étroitement liées avec celles qui sont
l’opinion exprimée dans Isherwood c. Ontario and exercées dans la sphère géographique traditionnelle du
Minnesota Power Co. (1911), 18 O.W.R. 459 (C. div.), droit maritime. Cela est particulièrement évident lorsque
selon laquelle la Loi permet de porter atteinte au droit l’on considère les Grands Lacs et la Voie maritime du
public de navigation mais non aux droits privés des Saint-Laurent, qui sont dans une très large mesure une
particuliers. C’est la proposition pour laquelle l’arrêt extension, sinon le commencement, des voies de transport
Champion fait autorité. maritime gràce auxquelles le pays fait du commerce avec
le monde. Mais cela est également manifeste lorsque
Pour ces motifs, j’ai conclu que la Couronne du chef de l’on examine les nombreux fleuves, rivières et voies d’eau
l’Alberta est, par déduction nécessaire ou logique, liée moins importants qui servent de port d’escale aux
par la Loi sur la protection des eaux navigables. Je suis océaniques et de point de départ pour quelques-unes des
également d’avis que, s’il n’en était pas ainsi, la Loi serait plus importantes exportations du Canada. C’est à n’en
privée de toute efficacité. J’ai pris note des considérations pas douter l’une des considérations qui ont amené les
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FRIENDS OF THE OLDMAN RIVER
tribunaux de l’Amérique du Nord britannique à décider gouvernement et, d’autre part, que le Décret sur les lignes
que le droit public de navigation, contrairement à ce que directrices est exorbitant de la compétence du Parlement
prétendaient les Anglais, s’étend à tous les fleuves et sur l’environnement. Les ministres appelants soutiennent
rivières navigables, peu importe qu’ils soient ou non à que, de par son caractère véritable, le Décret sur les lignes
l’intérieur de l’aire de flux et de reflux; [...] Cela explique directrices n’est qu’un moyen d’aider le gouvernement
probablement aussi pourquoi les Pères de la fédéral à prendre des décisions dans des domaines qui
Confédération ont estimé nécessaire d’attribuer le relèvent de la compétence du Parlement; l’intimée est
pouvoir général sur la navigation et les expéditions par en grande partie d’accord avec cette proposition.
eau au gouvernement central plutôt qu’à celui des
provinces... L’essentiel de la thèse de l’Alberta est que le Décret sur
les lignes directrices prétend conférer au gouvernement
Si la Couronne du chef d’une province était habilitée à du Canada une compétence générale sur l’environnement
saper l’intégrité des réseaux essentiels de navigation dans d’une façon qui empiète sur la compétence législative
les eaux canadiennes, à mon avis, l’objet de la Loi sur la exclusive de la province. L’Alberta soutient que le Décret
protection des eaux navigables serait, en fait, annihilé. sur les lignes directrices tente de réglementer les
Vu ces conclusions, je n’ai pas à examiner la question de répercussions environnementales de matières qui relèvent
la renonciation soulevée par les ministres appelants. en grande partie de la compétence de la province et qui,
par conséquent, ne peuvent, en vertu de la Constitution,
La question constitutionnelle constituer une préoccupation du Parlement. Elle est
d’avis tout particulièrement que le Parlement n’a pas de
La question constitutionnelle vise à savoir si le Décret compétence à l’égard des répercussions
sur les lignes directrices est général au point de environnementales d’ouvrages provinciaux comme le
contrevenir aux art. 92 et 92A de la Loi constitutionnelle barrage sur la rivière Oldman.
de 1867. Toutefois, aucun moyen n’a été présenté
relativement à l’art. 92A au motif apparent que le project Je suis d’accord que la Loi constitutionnelle de 1867 n’a
de construction d’un barrage sur la rivière Oldman n’est pas conféré le domaine de l’«environnement» comme
pas, selon les appelants, visé par cette disposition. Quoi tel aux provinces ou au Parlement. L’environnement,
qu’il en soit, la question n’a pas d’importance. Le dans son sens générique, englobe l’environnement
processus de révision judiciaire d’un texte législatif physique, économique et social touchant plusieurs
contesté parce qu’il serait ultra vires du parlement a domaines de compétence attribués aux deux paliers de
récemment fait l’objet d’une analyse dans l’arrêt gouvernement. Le professeur Gibson a succinctement
Whitbread c. Walley, précité, et je n’ai pas besoin de la résumé ce point il y a plusieurs années dans son article
reprendre ici, sauf pour dire que si l’on conclut que, de intitulé: «Constitutionnal Jurisdiction over
par son caractère véritable, le Décret sur les lignes Environmental Management in Canada» (1973), 23
directrices est un texte législatif lié à des matières relevant U.T.I.J. 54 à la p. 85:
de la compétence exclusive du Parlement, la question
est épuisée. Il serait alors indifférent qu’il touche [TRADUCTION]... la «gestion de l’environnement» ne
également des matières liées à la propriété et aux droits constitue pas dans la situation actuelle une unité
civils (Whitbread, à la p. 1286). L’analyse consiste tout constitutionnelle homogène. Elle touche plutôt différents
d’abord à déterminer si, de par son caractère véritable, domaines de responsabilité constitutionnelle, certains
le texte législatif est lié à une matière relevant d’un ou relevant du fédéral, d’autres des provinces. Il est par
plusieurs domaines de compétence législative. ailleurs fort évident que la «gestion de l’environnement»
ne pourrait jamais être considérée comme une unité
Bien que diverses expressions aient été utilisées pour constitutionnelle relevant d’un seul palier de
décrire ce que l’on entend par le «caractère véritable» gouvernement à l’intérieur d’une constitution de type
d’une disposition législative, j’ai exprimé dans l’arrêt fédéral parce qu’aucun système à l’intérieur duquel un
Whitbread c. Walley une préférence pour la détermination seul gouvernement serait aussi puissant ne serait fédéral.
de «la caractéristique principale ou la plus importante
de la loi contestée». Il va sans dire que les parties ont J’ai déjà mentionné que l’environnement est un sujet
fait valoir des aspects fort différents comme diffus, reprenant ainsi ce que j’ai dit dans l’arrêt R. c.
caractéristique la plus importante du Décret sur les lignes Crown Zellerbach Canada Ltd., précité, que le contrôle
directrices. Pour l’Alberta, c’est la façon dont le Décret de l’environnement, en tant que sujet, ne possède pas la
empiéterait sur les droits provinciaux; toutefois, elle n’a particularité requise pour satisfaire au critère en vertu de
pas mentionné de matière spécifique autre que des renvois la théorie de l’intérêt «national» formulée par le juge
généraux à l’environnement. L’Alberta soutient, d’une Beetz dans le Renvoi relatif à la Loi anti-inflation, précité.
part, que le Parlement n’a pas une compétence absolue Bien que j’aie exprimé l’opinion minoritaire dans l’arrêt
sur l’environnement, s’agissant là d’une matière relevant Crown Zellerbach, elle n’a pas été contestée sur ce point
de la compétence législative des deux paliers de par les juges de la majorité. La majorité a simplement
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
viables et efficaces, utilisant au mieux et aux moindrres
décidé que la pollution des mers est une question d’intérêt frais globaux tous les modes de transport existants, est
national à cause de son caractère et de ses incidences essentielle à la satisfaction des besoins des expéditeurs
surtout extra-provinciales et internationales, et parce que et des voyageurs en matière de transports comme à la
ses caractéristiques sont suffisamment distinctes pour en prospérité et à la croissance économique du Canada et
faire un sujet relevant du pouvoir résiduel du Parlement. de ses régions, d’autre part, ces objectifs ont le plus de
chances de se réaliser en situation de concurrence, dans
Il faut reconnaître que l’environnement n’est pas un et parmi les divers modes de transport entre tous les
domaine distinct de compétence législative en vertu de transporteurs, à condition que, compte dûment tenu de
la Loi constitutionnelle de 1867 et que c’est, au sens la politique nationale et du contexte juridique et
constitutionnel, une matière obscure qui ne peut être consitutionnel:
facilement classée dans le partage actuel des
compétences, sans un grand chevauchement et une grande d) les transports soient reconnus comme un facteur
incertitude. On a élaboré diverses méthodes analytiques primordial du développement économique régional et que
pour régler ce problème; toutefois, il n’en existe pas une soit maintenu un équilibre entre les objectifs de rentabilité
seule qui conviendra dans tous le cas. Certains envisagent des liaisons de transport et ceux de développement
une analyse fonctionnelle en décrivant des économique régional en vue de la réalisation du potentiel
préoccupations environnementales spécifiques et en économique de chaque région; ......
attribuant ensuite la responsabilité en fonction des divers
domaines de compétence; voir par exemple Gibson, loc. Cette déclaration nous éclaire sur l’étendue de la
cit. D’autres abordent le problème du point de vue de compétence législative du Parlement en matière de
l’étendue des pouvois fédéraux en distinguant ceux qui transport ferroviaire et sur la façon dont on lui impose
peuvent être considérés comme «conceptuels» ou de tenir compte des ramifications socio-économiques à
«globaux» (par exemple, le droit criminel, la taxation, la fois nationales et locales de ses décisions. Par ailleurs,
les échanges et le commerce, le pouvoir de dépenser et on ne peut sérieusement mettre en doute que le Parlement
le pouvoir résiduel général) par opposition à ceux qui puisse s’occuper de questions biophysiques
sont «fonctionnels» (la navigation et les pêcheries); voir environnementales ayant une incidence sur l’exploitation
P. Emond, «The Case for a Greater Federal Role in the des chemins de fer dans la mesure où il le fait dans le
Environmental Protection Field: An Examination of the cadre d’une loi sur les chemins de fer. Il pourrait
Pollution Problem and the Constitution» (1972), 10 notamment s’agir de questions touchant les normes
Osgood Hall L.J. 647, et M.E. Hatherly, Constitutional d’émission ou les mesures de réduction du bruit.
Jurisdiction in Relations to Environmental Law,
document d’étude rédigé dans le cadre du projet de la Pour poursuivre avec le même exemple, on peut proposer
protection de la vie, Commission de réforme du droit du l’emplacement et la construction d’une nouvelle voie
Canada (1984). ferrée, qui devraient être approuvés en vertu des
dispositions pertinentes de la Loi sur les chemins de fer,
À mon avis, on peut plus facilement trouver la solution L.R.C. (1985), ch. R-3. En effet, cette voie pourrait
applicable à l’espèce en examinant tout d’abord traverser des habitats fragiles du point de vue écologique
l’énumération des pouvoirs dans la Loi constitutionnelle comme des marécages et des forêts. En outre, le risque
de 1867 et en analysant comment ils peuvent être utilisés de déraillement peut présenter un grave danger pour la
pour répondre aux problèmes environnementaux ou pour santé et la sécurité des collectivités avoisinantes dans le
les éviter. On pourra alors se rendre compte que, dans cas de transport de marchandises dangereuses. Par
l’exercice de leurs pouvoirs respectifs, les deux paliers contre, cette voie peut entraîner d’importantes retombées
de governement peuvent toucher l’environnement, tant économiques locales grace à la création d’emplois et à
par leur action que par leur inaction. Pour mieux l’effet de multiplication qui s’ensuivra. L’autorité
comprendre, on doit examiner des pouvoirs spécifiques. réglementante peut exiger que la voie soit construite à
Un exemple intéressant est la compétence législative l’extérieur des districts résidentiels eu égard à la
exclusive du Parlement fédéral sur le transport ferroviaire suppression du bruit et par souci de sécurité. À mon
interprovincial en vertu de l’al. 92(10)a) et du par. 91(29) avis, on peut validement tenir compte de toutes ces
de la Loi constitutionnelle de 1867. La réglementation considérations dans la décision finale d’accorder ou non
du transport ferroviaire fédéral a été confiée à l’Office l’approbation nécessaire. Prétendre le contraire nous
national des transports conformément à la Loi de 1987 conduirait à des résultats étonnants et il ne serait pas
sur les transports nationaux; le mandat de cet office est logique d’affirmer que la Constitution ne permet pas au
vaste, comme le résume la déclaration figurant à l’art. 3 Parlement de tenir compte des vastes répercussions
qui prévoit notamment: environnementales, y compris des préoccupations socio-
économiques, lorsqu’il légifère relativement à des
3.(1) Il est déclaré que, d’une part, la mise en place d’un décisions de cette nature.
réseau sûr, rentable et bien adapté de services de transport
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FRIENDS OF THE OLDMAN RIVER
Le même raisonnement peut être appliqué à plusieurs activités. Ces observations peuvent être illustrées par
autres matières, y compris une de celles dont nous deux arrêts sur les pêches. Dans Fowler c. La Reine
sommes saisis, savoir la navigation et les expéditions par (1980) 2 R.C.S. 213, la Cour a statué que le par. 33(3) de
eau. Certaines dispositions de la Loi sur la proteciton la Loi sur les pêches excédait les pouvoirs du Parlement
des eaux navigables visent directement les parce que l’interdiction générale de déposer «des déchets
préoccupations environnementales biophysiques qui de bois, souches ou autres débris» dans une eau
touchent la navigation. Les articles 21 et 22 disposent: fréquentée par le poisson n’était pas suffisamment liée
aux dommages, réels ou probables, que les pêches
21. Il est interdit de jeter ou déposer, de faire jeter ou pourraient subir. Toutefois, dans l’arrêt Northwest
déposer ou de permettre ou tolérer que soient jetés ou Falling Contractors Ltd. c. La Reine (1980) 2 R.C.S. 292,
déposés des sciures, rognures, dosses, écorces, ou des la Cour a statué que le par. 33(2), qui interdit à qui que
déchets semblables de quelque nature susceptibles de ce soit de déposer une substance nocive en quelque lieu
gêner la navigation dans des eaux dont une partie est dans des conditions où cette substance nocive pourrait
navigable ou qui se déversent dans des eaux navigables. pénétrer dans des eaux poissonneuses, était de la
compétence du Parlement du Canada en vertu du par.
22. Il est interdit de jeter ou déposer, de faire jeter ou 91(2).
déposer ou de permettre ou tolérer que soient jetés ou
déposés de la pierre, du gravier, de la terre, des escarbilles, Les provinces peuvent de la même façon oeuvrer dans le
cendres ou autres matières ou déchets submersibles dans domaine de l’environnement dans l’exercice de leur
des eaux dont une partie est navigable ou qui se déversent compétence législative en vertu de l’art. 92. Par exemple,
dans des eaux navigables et où il n’y a pas les lois ayant trait aux ouvrages et entreprises de nature
continuellement au moins vingt brasses d’eau; le présent locale tiendront souvent compte de préoccupations
article n’a toutefois pas pour effet de permettre de jeter environnementales. Toutefois, dans la détermination de
ou déposer une substance dans des eaux navigables là la compétence constitutionnelle de chacun des paliers
où une autre loi interdit de le faire. de gouvernement sur un projet comme le barrage de la
rivière Oldman, il n’est par particulièrement utile de
Comme je l’ai mentionné, cette loi a une dimension qualifier cet ouvrage de [TRADUCTION] «projet
environnementale de plus grande envergure, compte tenu provincial ou d’entreprise [TRADUCTION]
du contexte de common law dans lequel elle a été adoptée. «principalement assujettie à la réglementation
La common law interdit les obstacles qui portent atteinte provinciale» comme a tenté de le faire l’appelante
au droit public suprême de navigation. Plusieurs des l’Alberta. C’est présumer de la réponse et poser un
«
ouvrages» mentionnés dans la Loi ne visent pas à principe erroné qui semble accepter l’existence d’une
améliorer la navigation. Les ponts ne favorisent pas la théorie générale de l’exclusivité des compétences visant
navigation ni d’ailleurs un grand nombre de barrages. à exempter les ouvrages ou entreprises de nature
Par conséquent, lorsqu’il s’agit de décider d’autoriser provinciale de l’application de lois fédérales par ailleurs
un ouvrage de cette nature, le ministre devrait presque valides. Comme le fait remarquer le juge en chef Dickson
certainement tenir compte des avantages et désavantages dans l’arrêt Alberta Government Telephones, précité, à
résultant de l’entrave à la navigation. Cela pourrait la p. 275:
nécessiter un examen des préoccupations
environnementales comme la destruction de la pêche; le Il faut se rappeler que l’un des aspects de la théorie du
Décret sur les lignes directrices ne vise donc qu’à étendre caractère véritable est qu’une loi relative à un chef de
la portée de ses préoccupations. compétence d’un palier de gouvernement peut validement
toucher un chef de compétence de l’autre palier. Le
On doit rappeler que l’exercice d’une compétence fédéralisme canadien a évolué de façon à tolérer à
législative, dans la mesure où elle se rapporte à plusieus égards le chevauchement des lois fédérales et
l’environnement, doit, comme toute autre préoccupation, provinciales et, à mon avis, une théorie de l’immunité
se rattacher au domaine de compétence approprié; constitutionnelle n’est ni souhaitable ni nécessaire à la
puisque la nature des divers domaines de compétence en réalisation d’objectifs provinciaux réguliers.
vertu de la Loi constitutionnelle de 1867 diffère,
l’importance qui pourra être accordée aux préoccupations Il importe de déterminer quel palier de gouvernement
environnementales dans l’exercice d’une compétence peut légiférer. Un palier peut légiférer à l’égard des
donnée pourra varier d’un domaine à l’autre. Par aspects provinciaux et l’autre, à l’égard des aspects
exemple, le Parlement peut jouer, en matière fédéraux. Bien que les projets de nature locale relèvent
d’environnement, dans l’exercice de sa compétence sur généralement de la compétence provinciale, ils peuvent
les pêcheries, un rôle quelque peu différent de celui qu’il exiger la participation du fédéral dans le cas où le projet
a en vertu de sa compétence sur les chemins de fer ou la empiète sur un domaine de compétence fédérale comme
navigation puisque dans le premier cas il gère une en l’espèce.
ressource, alors que dans les deux autres, il gère des
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
Toutefois, le raisonnement de l’Alberta recèle un inconstitutionnelle pour autant puisqu’elle porte
sophisme encore plus fondamental, qui touche la façon directement sur le sujet de l’exportation et les
d’exercer les pouvoirs constitutionnels. Lorsqu’il légifère considérations qui la sous-tendent ne portent pas atteinte
sur une matière, l’organe législatif doit s’en tenir à cette au caractère que le sujet de compétence lui confère.
matière. L’objet pratique à la base de la loi et les
répercussions dont l’organe doit tenir compte dans sa Je m’empresse d’ajouter que je ne veux pas établir de
prise de décision sont une toute autre chose. En l’absence comparaison entre la compétence des pays du
d’un objet déguisé ou d’un manque de bonne foi, ces Commonwealth en matière d’échanges et de commerce
considérations ne porteront pas atteinte à la nature prévue par la Constitution Australienne et celle que existe
fondamentale de la loi. On peut exiger qu’une voie ferrée dans la Constitution Canadienne. Certes, il y a des
soit construite à un endroit où la fumée ou le bruit ne différences importantes entre les deux documents, mais
constituera pas une nuisance pour la municipalité, mais l’idée générale qui ressort de l’arrêt Murphyores est
il s’agit néanmoins d’un règlement sur les chemins de néanmoins valide en l’espèce. Cet arrêt souligne le risque
fer. de croire à tort que l’environnement est une question
accessoire lorsqu’il s’agit de faire des choix législatifs
Un arrêt australien, Murphyores Incorporated Pty Ltd. ou de prendre des décisions administratives. De toute
v. Commonwealth of Australia (1976), 136 C.L.R. 1 évidence, cela ne peut être le cas. Tout simplement,
(H.C.), illustre bien le point dans un contexte semblable l’environnement comprend tout ce qui nous entoure et,
à celui de l’espèce. Dans cette affaire, les demandeurs comme tel, doit être à la base d’un grand nombre de
exploitaient une carrière qui servait à la production de décisions courantes.
concentrés de zircon et de rutile. L’exportation de ces
substances était régie par le Customs (Prohibited Exports) L’évaluation des incidences environnementales est, sous
Regulations (adopté en vertu de la compétence du sa forme la plus simple, un outil de planification que
Commonwealth (c’est-à-dire le pouvoir fédéral) en l’on considère généralement comme faisant partie
matière d’échanges et de commerce) et devait être intégrante d’un processus éclairé de prise de décisions.
approuvée par le ministre des mines et de l’énergie. Le R. Cotton et D. P. Emond, dans un ouvrage intitulé
litige a pris naissance dans le cadre d’une equête devant «Environmental Impact Assessment», dans J. Swaigen,
être réalisée en vertu de l’Environment Protection (Impact dir., Environmental Rights in Canada (1981), 245, à la
of Proposals Act 1974-1975 (Cth) sur l’incidence p. 247, résument l’objet fondamental de cette évaluation:
environnementale de l’extraction minière à l’endroit où
les demandeurs détenaient leurs baux miniers. Le [TRADUCTION] Les concepts fondamentaux à la base
ministre responsable informa alors les demandeurs qu’il de l’évaluation environnementale peuvent être énoncés
devrait faire analyser le rapport d’enquête avant en termes simples: (1) déterminer et évaluer avant coup
d’autoriser toute autre exportation de concentrés. toutes les conséquences environnementales possibles
d’une entreprise proposée; (2) permettre une prise de
Les demandeurs prétendaient que le ministre pouvait décisions qui à la fois garantira l’à-propos du processus
seulement tenir compte des questions se rapportant à la et concilliera le plus possible les désirs d’aménagement
[TRADUCTION] «politique relative aux échanges» du promoteur et la protection et la préservation de
adoptée en vertu de la compétence des pays du l’environnement.
Commonwealth en matière d’échanges et de commerce,
plutôt que des préoccupations environnementales se En tant qu’outil de planification, le processus
rattachant à l’exploitation minière antérieure, qui relevait d’évaluation renferme un mécanisme de collecte de
principalement de la compétence de l’Etat. Cette renseignements et de prise de décisions, qui fournit au
prétention a été unanimement rejetée; le juge Stephen décideur une base objective sur laquelle il pourra
indique à la p. 12: s’appuyer pour autoriser ou refuser un projet
d’aménagement; voir M. I. Jeffery, Environmental
[TRADUCTION] La décision administrative d’assouplir Approvals in Canada (1989), à la p. 1.2, ch.1.4; D.P
ou non l’interdiction d’exporter des marchandises tiendra Emond,Environmental Assessment Law in Canada
nécessairement compte des considérations qui intéressent (1978), à la p.5. Bref, l’évaluation des incidences
l’administrateur, toutefois, quelle que soit la nature de environnementales constitue simplement une description
ces considérations, la conséquence sera nécessairement du processus de prise de décisions.
exprimée en fonction des échanges et du commerce, soit
l’approbation ou le rejet d’une demande visant à assouplir Le Décret sur les lignes directrices vient simplement
l’interdiction des exportations. Ce sera alors une décision s’ajouter aux questions dont les décideurs fédéraux
prise dans le cadre d’un pouvoir constitutionnel. Les doivent tenir compte. Si le ministre des Transports devait
considérations à la base de la prise de décisions peuvent spécifiquement tenir compte des préoccupations en
ne pas avoir trait aux questions d’échanges et de matière de pêche dans l’examen des demandes de
commerce, mais la décision ne sera pas construction d’ouvrages dans les eaux navigables,
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FRIENDS OF THE OLDMAN RIVER
pourrait-on soulever que cette attribution de compétence toutefois, lorsque le ministère responsable a reçu le
est ultra vires? Tout ce que cela signifierait est que le pouvoir de procéder à l’évaluation, cet examen doit tenir
décideur doit aussi prendre en considération d’autres compte des répercussions environnementales dans tous
questions qui relèvent de la compétence fédérale. Je ne les domaines de compétence fédérale. Aucun obstacle
suis pas indifférent aux propos du substitut du procureur constitutionnel n’empêche le Parlement d’adopter un
général de la Saskatchewan qui a cherché à qualifier le texte législatif en vertu de plusieurs domaines de
Décret sur les lignes directrices de cheval de Troie compétence en même temps; voir les arrêts Jones c.
constitutionnel permettant au gouvernement fédéral, sous Procureur général du Nouveau-Brunswick, (1975) 2
prétexte de l’existence de quelque champ restreint de R.C.S. 338, à la p. 350. Dans le cas du Décret sur les
compétence fédérale, de procéder à un examen lignes directrices, le Parlement a conféré à une institution
approfondi de questions qui relèvent exclusivement de le «ministère responsable») la responsabilité, dans
la compétence des provinces. Toutefois, suivant mon l’exercice de son pouvoir de décision, d’évaluer les
interprétation du Décret sur les lignes directrices, le répercussions environnementales sur tous les domaines
«Ministère responsable» qui procède à l’évaluation de compétence fédérale susceptibles d’être touchés. En
initiale et, au besoin, la Commission d’évaluation l’espèce, le ministre des Transports, à titre de décideur
environnementale n’ont que le mandat d’examiner les en vertu de la Loi sur la protection des eaux navigables,
questions se rapportant directement aux domaines de doit examiner les incidences environnementales du
compétence fédérale concernés. En conséquence, le barrage sur les domaines de compétence fédérale, comme
ministère responsable ou la commission ne peuvent se les eaux navigables, les pêcheries, les Indiens et les terres
servir du Décret sur les lignes directrices comme moyen indiennes, pour ne nommer que ceux qui sont le plus
déguisé d’envahir des champs de compétence provinciale pertinents dans les circonstances.
qui ne se rapportent pas aux domaines de compétence
fédérale concernés. Essentiellement, le Décret sur les lignes directrices
comporte deux aspects fondamentaux. Il y a tout d’abord
À cause de son caractère accessoire, l’évaluation des l’aspect de fond qui porte sur l’évaluation des incidences
incidences environnementales doit «véritablement viser environnementales, dont l’objet est de faciliter la prise
une institution ou une activité qui relève de la compétence de décisions dans le domaine de compétence fédérale
législative [fédérale]»; voir l’arrêt Devine c. Québec qui régit une proposition. Comme je l’ai mentionné, cet
(Procureur général), (1988) 2 R.C.S. 790, à la p. 808. aspect du Décret sur les lignes directrices peut être
Compte tenu de l’élément nécessaire de proximité qui maintenu au motif qu’il s’agit d’un texte législatif se
doit exister entre le processus d’évaluation rapportant aux matières pertinentes énumérées à l’art.
environnementale et le domaine de compétence fédérale 91 de la Loi constitutionnelle de 1867. Le deuxième
concerné, ce texte législatif peut, à mon avis, s’appuyer aspect est l’élément procédural ou organisationnel
sur le domaine particulier de comptétence fédérale coordonnant le processus d’évaluation, qui peut dans un
invoqué dans chaque cas. Plus particulièrement, le Décret cas donné toucher plusieurs domaines de compétence
sur les lignes directrices exige un rapport étroit entre les fédérale, relevant d’un décideur désigné ou, pour
répercussions sociales susceptibles d’être examinées et employer le jargon du Décret sur les lignes directrices,
les répercussions environnementales en général. Aux le «ministère responsables». Cette facette vise à
termes de l’art. 4, les répercussions sociales examinées, réglementer la façon dont les institutions et organismes
au cours de l’étape initiale d’évaluation, doivent être du gouvernement du Canada exercent leurs fonctions et
«directement liées» aux effets possibles de la proposition responsabilités administratives. Cela, à mon avis, est
sur l’environnement, à l’instar de l’art. 25 portant sur le indiscutablement intra vires du Parlement. Cet aspect
mandat en vertu duquel une commission d’évaluation peut être considéré comme un pouvoir accessoire de la
environnementale peut agir. Par ailleurs, dans le cas où compétence législative en cause, ou de toute façon, être
le Décret sur les lignes directrices s’applique à une justifié en vertu du pouvoir résiduel prévu à l’art. 91.
proposition parce qu’elle a des répercussions sur un
domaine de compétence fédérale, par opposition aux trois Dans une situation connexe, la Cour a adopté une analyse
autres cas d’application prévus à l’art. 6, les répercussions similaire dans l’arrêt Jones c. Procureur général du
environnementales à examiner sont seulement celles qui Nouveau-Brunswick, précité. Dans cette affaire, la Cour
peuvent avoir une incidence sur les domaines de devait trancher la question de la constitutionnalité, en
compétence fédérale touchés. fonction du partage des compétences, de certaines
dispositions de la Loi sur les langues officielles, S.R.C.
Toutefois, je dois préciser que l’étendue de l’évaluation 1970, ch. O-2, de l’Evidence Act du Nouveau-Brunswick,
n’est pas limitée au domaine particulier de compétence R.S.N.B. 1952, ch. 74, et de la Loi sur les langues
à l’égard duquel le gouvernement du Canada participe à officielles du Nouveau-Brunswick, S.N.B. 1969, ch. 14.
la prise de décisions au sens du terme «proposition». La loi fédérale faisait du français et de l’anglais les
Cette participation, comme je l’ai déjà mentionné, est langues officielles du Canada; les dispositions attaquées
une condition nécessaire à l’application du processus; reconnaissaient l’utilisation des deux langues officielles
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
devant les tribunaux fédéraux et dans les procédures dans l’arrêt Compagnie des Chemins de fer nationaux
criminelles. Le juge en chef Laskin affirme à la p. 189: du Canada c. Courtois,. (1988) 1 R.C.S. 868, dans lequel,
la Cour a statué que certaines dispositions de la Loi sur
....je ne doute aucunement qu’il était loisible au Parlement la santé et la sécurité du travail, L.Q. 1979, ch. 63, qui
du Canada d’édicter la Loi sur les langues officielles permettaient notamment à la province d’enquêter sur les
(restreinte qu’elle est à ce qui relève du Parlement et du accidents et d’émettre des avis de correction, étaient
gouvernement du Canada, et aux institutions de ces inapplicables à une entreprise ferroviaire interprovinciale.
Parlement et gouvernement) à titre de loi «pour la paix, Je tiens à préciser que l’Alberta a, à tort, accordé une
l’ordre et le bon gouvernement du Canada, relativement trop grande importance à cet arrêt. Celui-ci se distingue
à [une matière] ne tombant pas dans les catégories de de la présente affaire pour plusieurs motifs, le plus
sujets ... exclusivement assignés aux législatures des important étant que le texte législatif provincial attaqué
provinces». Les termes en question sont extraits de dans cet arrêt était impératif à l’égard d’une entreprise
l’alinéa liminaire de l’art. 91 de l’Acte de l’Amérique du fédérale et a été interprété par la Cour comme
Nord britannique; et, en me basant sur eux comme réglementant l’entreprise.
fondement constitutionnel de la Loi sur les langues
officielles, je ne tiens compte que du caractère purement Pour ces motifs, je conclus que le Décret sur les lignes
résiduaire du pouvoir législatif qu’ils confèrent. Point directrices est intra vires du Parlement et je répondrais
n’est besoin de citer de précédent à l’appui du pouvoir par la négative à la question constitutionnelle.
exclusif du Parlement du Canada de légiférer relativement
au foncionnement et à l’administration des institutions Le pouvoir discrétionnaire
et organismes du Parlement et du gouvernement du
Canada. Ces institutions et organismes sont de toute La dernière question de fond soulevée dans le présent
évidence hors de la portée des provinces. [Je souligne.] pourvoi est de savoir si la Cour d’appel fédérale a commis
une erreur en modifiant la décision du juge des requêtes,
La Cour a également confirmé la loi fédérale en vertu de prise dans l’exercice de son pouvoir discrétionnaire, de
la compétence du Parlement en matière de droit criminel ne pas accorder la réparation sollicitée, en l’occurrence
(par. 91(27)) et d’établissement de tribunaux fédéraux un bref de la nature d’un certiorari et un bref de la nature
(art. 101). Le juge en chef Laskin indique aussi que rien d’un mandamus, en raison du retard déraisonnable et de
dans la Constitution n’empêche le Parlement d’étendre la futilité de la procédure. Le juge Stone a statué que le
le champ de l’emploi privilégié ou obligatoire du français juge des requêtes avait commis un type d’erreur justifiant
et de l’anglais dans les institutions ou les activités qui la Cour d’appel de modifier l’exercice de son pouvoir
relèvent du contrôle fédéral. Pour des motifs semblables, discrétionnaire sur les deux motifs.
la loi provinciale prévoyant l’utilisation des deux langues
officielles devant les tribunaux du Nouveau-Brunswick Les principes qui régissent l’examen en appel de
a été jugée valide en raison de la compétence des l’exercice du pouvoir discrétionnaire d’un tribunal
provinces en matière d’administration de la justice (par. d’instance inférieure n’ont pas été examinés en
92(14)). profondeur, seule leur application aux faits de l’espèce
l’a été. Le juge Stone a cité l’arrêt Polylok Corp. c.
En fin de compte, je suis convaincu que, de par son Monstreal fast Print (1975) Ltd, (1984) 1 C.F. 713 (C.A.),
caractère véritable, le Décret sur les lignes directrices qui approuve l’énoncé suivant du vicomte Simon, lord
n’est rien de plus qu’un instrument qui régit la façon Chancelier, dans Charles Osenton & Co. c. Johnston,
dont les institutions fédérales doivent gérer leurs diverses (1942) A.C. 130, à la p. 138:
fonctions. En conséquence, il n’est rien de plus qu’un
ajout à l’exercice des compétences législatives fédérales [TRADUCTION] La règle relative à l’annulation par
concernées. Quoi qu’il en soit, ce texte peut être adopté une cour d’appel d’une ordonnance rendue par un juge
en vertu du pouvoir purement résiduel à titre de loi «pour d’une instance inférieure dans l’exercice de son pouvoir
la paix, l’ordre et le bon gouvernement du Canada» en discrétionnaire est bien établie, et tous les problèmes qui
vertu de l’art. 91 de la Loi constitutionnelle de 1867. se présentent résultent seulement de l’application de
Toute ingérence dans la sphère de compétence provinciale principes déterminés à un cas particulier. Le tribunal
est simplement accessoire au caractère véritable du texte d’appel n’a pas la liberté de simplement substituer
législatif. On doit aussi rappeler, d’une part, que le l’exercice de son propre pouvoir discrétionnaire à celui
processus d’évaluation est essentiellement un processus déjà exercé par le juge. En d’autres termes, les
de collecte de renseignements destiné à faciliter la prise juridictions d’appel ne devraient pas annuler une
de décisions relevant du fédéral et, d’autre part, que les ordonnance pour la simple raison qu’elles auraient exercé
recommandations présentées à la fin de l’étape de collecte le pouvoir discrétionnairre original, s’il leur avait
de renseignements ne lient pas le décideur. Ni le appartenu, d’une manière différente. Toutefois, si le
ministère responsable ni la commission ne peuvent tribunal d’appel conclut que le pouvoir discrétionnaire a
assigner des témoins à comparaître, comme c’était le cas été exercé de façon erronée, parce qu’on n’a pas accordé
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FRIENDS OF THE OLDMAN RIVER
suffisamment d’importance, ou qu’on en n’a pas accordé assorti d’un bref de prohibition visant à annuler un permis
du tout, à des considérations pertinentes comme celles provisoire délivré par le ministre de l’Environnement de
que l’appelante a fait valoir devant nous, il est alors l’Alberta conformément à la Water Resources Act. Le 8
possible de justifier l’annulation de l’ordonnance. décembre 1987, le juge en chef Moore de la Cour du
Banc de la Reine a annulé tous les permis qui avaient été
C’était essentiellement le critère adopté par notre Cour délivrés par le ministre parce que le ministère n’avait
dans l’arrêt Harelkin c. Université de Regina, (1979) 2 pas déposé les approbations nécessaires avec sa demande,
R.C.S. 561, dans lequel, le juge Beetz affirme à la p. qu’il n’avait pas soumis la question à l’examen de
588: l’Energy Resources Conservation Board conformément
à l’art. 17 de la Loi et que le délégué du ministre avait
Deuxièmement, en refusant d’évaluer, malgré la mal exercé son pouvoir discrétionnaire en renonçant aux
difficulté, si le défaut de respecter la justice naturelle exigences prévues dans la Loi relativement aux avis
pouvait être corrigé en appel, le savant juge de première publics: Friends of the Oldman River Society v. Alberta
instance a refusé de tenir compte d’un élément (Minsiter of the Environment (1987) 85 A.R. 321. Un
prépondérant en l’espèce; de ce fait, il n’exerçait pas son autre permis provisoire a été délivré le 5 février 1988;
pouvoir discrétionnaire pour des motifs pertinents et ne l’intimée a de nouveau présenté une demande
laissait à la Cour d’appel d’autre choix que d’intervenir. d’annulation de ce permis, principalement au motif que
[Je souligne.) l’on avait à tort renoncé aux avis publics. La demande a
été rejetée par le juge Picard, qui a statué que les
Quelles sont alors les considérations pertinentes dont le documents appropriés avaient été déposés en même
juge des requêtes aurait dû tenir compte dans l’exercice temps que la demande de permis et que le délégué du
de son pouvoir discrétionnaire? La question du retard ministre avait le pouvoir de renoncer à l’avis public:
est le premier motif invoqué par le juge des requêtes Friends of Oldman River Society v. Alberta (Minister of
lorsqu’il a, dans l’exercice de son pouvoir discrétionnaire, the Environment) (1988), 89 A.R. 339 (B.R.).
refusé d’accorder le bref de prérogative. Il n’y a pas de
doute qu’un retard déraisonnable peut empêcher un Entretemps, la Société intimée avait demandé à l’Energy
requérant d’obtenir un redressement assujetti à l’exercice Resources Conservation Board de l’Alberta de tenir une
d’un pouvoir discrétionnaire, notamment dans le cas où audience publique aux fins de l’examen des aspects
ce retard risquerait d’être préjudiciable à d’autres parties hydro-électriques du barrage conformément à l’Hydro
qui se seraient fiées, à leur détriment, à la décision and Electric Energy Act. Dans sa réponse du 18
contestée; la question du caractère déraisonnable décembre 1987, le Board a refusé d’acquiescer à la
dépendra des faits de chaque affaire; voir S. A. de Smith, demande de la Société au motif que le barrage ne
Judicial Review of Administrative Action (4e éd. 1980), constituait pas un [TRADUCTION] «développement
à la p. 423, et D.P. Jones et A.S. de Villars, Principles of hydro-électrique’ au sens de la Loi. Une demande
Administrative Law (1985), aux pp. 373 et 374. Le juge d’autorisation d’appel a été présentée à la Cour d’appel
des requêtes a, d’une part, tenu compte du délai qui s’est de l’Alberta, qui a rejeté la demande, souscrivant à
écoulé entre l’approbation accordée par le ministre des l’opinion du Board qu’il ne s’agissait pas d’un projet
Transports le 18 septembre 1987 et le dépôt de l’avis de hydro-électrique, même s’il devait permettre l’installation
requête dans la présente action le 21 avril 1989 et, d’autre future d’une centrale électrique: Friends of the OldMan
part, du fait que le projet était déjà complété à environ River Society v. Energy Resoruces Conservation Board
40 pour 100 à cette date. Toutefois, en toute déférence, (Alta.) (1988), 89 A.R. 280. Enfin, Mme Kostuch a
il n’a pas tenu compte d’un grand nombre de mesures déposé une dénonciation devant un juge de paix dans
que la Société intimée a prises avant d’entamer la présente laquelle elle allègue qu’une infraction a été commise en
contestation, dont certaines ont été mentionnées par le contravention de l’art. 35 de la Loi sur les pêches. Après
juge Stone. Je tiens à faire remarquer que le juge Stone les assignations, le procureur général de l’Alberta est
s’est trompé lorsqu’il a affirmé que les procédures avaient intervenu et a ordonné un arrêt des procédures le 19 août
été intentées deux mois seulement après que la Société 1988. J’ai déjà examiné les lettres adressées au ministre
eut été mise au courant de la décision d’accorder fédéral de l’Environnement et au ministre des Pêches et
l’approbation. Au cours du contre-interrogatoire relatif des Océans en 1987 et 1988, dans lesquelles des membres
à son affidavit à l’appui de la demande, Mme Kostuch, de la Société ont cherché en vain à faire appliquer le
vice-présidente, a reconnu que la Société avait été mise Décret sur les lignes directrices.
au courant de l’approbation le 16 février 1988, soit
quelque 14 mois avant le début de la présente action. À mon avis, cette chronologie indique que la Société s’est
efforcée d’une façon soutenue et concetée de contester
Toutefois, la présente action n’est pas la seule engagée d’une part, la légalité des mesures prises par l’Alberta
par la Société relativement à la construction du barrage. relativement à la construction du barrage et d’autre part,
La Société a tout d’abord intenté une action en octobre l’acquiescement des ministres appelants. Pendant tout
1987, sollicitant la délivrance d’un bref de certiorari ce temps, la construction du barrage s’est poursuivie, en
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JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
dépit des contestations judiciaires en cours; à la date de qu’il ne sera pas délivré de bref de la nature d’un
l’audience devant notre Cour, l’avocat de l’Alberta nous mandamus ordonnant au ministre des Pêches et des
a informés que la construction du barrage était en grande Océans de se conformer au Décret sur les lignes
partie achevée. Je ne crois pas qu’il existe une preuve directrices, avec dépens comme entre procureur et client
que l’Alberta a subi un prédice quelconque en raison d’un en faveur de l’intimée dans toutes les cours. Je suis d’avis
retard à intenter la présente action; rien n’indique que la de répondre par la négative à la question constitutionnelle.
province était disposée à consentir à une évaluation des
incidences environnementales en vertu du Décret sur les Version française des motifs rendus par
lignes directrices avant l’épuisement de tous les recours
légaux, y compris le pourvoi devant notre Cour. Le juge LE JUGE STEVENSON (dissident) - J’ai eu l’avantage
des requêtes n’a pas suffisamment accordé d’importance de lire les motifs de mon collègue le juge La Forest et,
à ces considérations ou les a ignorées. En conséquence, avec égards, je ne suis pas d’accord avec lui sur trois
la Cour d’appel était justifiée de modifier l’exercice de points. À mon avis:
son pouvoir discrétionnaire sur ce point.
1. La Couronne n’est pas liée par la Loi sur la protection
L’autre motif du refus de délivrer un bref de prérogative des eaux navigables, L.R.C. (1985), ch. N-22
se fondait sur la futilité de la procédure, savoir que («L.P.E.N.»ê.
l’évaluation des incidences environnementales en vertu
du Décret sur les lignes directrices serait inutilement 2. La Cour d’appel fédérale, (1990) 2 C.F. 18, a commis
répétitive en raison des études réalisées dans le passé. À une erreur en modifiant la décision du juge des requêtes,
mon avis, ce motif ne pouvait justifier un refus dans les prise dans l’exercice de son pouvoir discrétionnaire, de
circonstances. La délivrance d’un bref de prérogative ne pas accorder le bref de prérogative.
devrait être refusée pour motif de futilité seulement dans
les rares cas où sa délivrance serait vraiment inefficace. 3. Les appelants ne devraient pas être contraints de payer
par exemple, le cas où sa délivrance serait vraiment les dépens comme entre procureur et client.
inefficace. Par exemple, le cas où l’ordonnance ne
pourrait pas être exécutée, savoir une ordonnance de Je suis d’accord avec son analyse des questions
prohibition à l’encontre d’un tribunal s’il ne lui reste rien constitutionnelles et avec son interprétation des
à faire qui puisse être interdit; voir de Smith, op. cit. aux dispositions de mise en oeuvre du Décret sur les lignes
pp. 427 et 428. Ce n’est pas du tout la même situation directrices visant le processus d’évaluation et d’examine
lorsque l’on ne peut déterminer à priori qu’une en matière d’environnement, DORS/84-467.
ordonnance de la nature d’un bref de prérogative n’aura
aucune incidence sur le plan pratique. En l’espèce, mis 1. L’immunité de la Couronne
à part ce que le juge Stone a déjà dit relativement aux
différences du point de vue qualitatif entre l’évaluation En l’espèce, la question est simple: la Couronne est-elle
prévue par le Décret sur les lignes directrices et les études liée par la L.P.E.N.? Pour les fins de la présente analyse,
antérieures, il n’est pas du tout évident que l’application je n’établis pas de distinction entre les Couronnes fédérale
du Décret sur les lignes directrices, même à cette étape et provinciales. La Couronne est indivisible à cette fin:
tardive, n’aura pas un certain effet sur les mesures Alberta Government Telephones c. Canada (Conseil de
susceptibles d’être prises pour atténuer toute incidence la radiodiffusion et des télécommunications
environnementale néfaste que pourrait avoir le barrage Canadiennes, (1989) 2 R.C.S. 225, aux pp. 272 et 273.
sur un domaine de compétence fédérale. En
conséquence, je conclus que la Cour d’appel n’a pas Conformément à la Loi d’interprétation, L.R.C. (1985),
commis d’erreur en modifiant la décision du juge des ch. I-21 (auparavant S.R.C. 1970, ch. I-23), nul texte
requêtes de refuser, dans l’exercice de son pouvoir législatif ne lie la Couronne, sauf dans la mesure qui y
discrétionnaire, le redressement sollicité. est mentionnée ou prévue. La portée de ces termes a été
interprétée dans l’arrêt Alberta Government Telephones,
En ce qui concerne les dépens, à mon avis, il s’agit d’un à la p. 281:
cas où il est approprié d’accorder les dépens comme entre
procureur et client à la Société intimée, compte tenu de Il me semble que les termes «mentionnée ou prévue»
la situation de cette dernière et du fait que les ministères contenus à l’art. 16 (maintenant l’art. 17) peuvent
fédéraux ont été joints comme appelants même s’ils comprendre: (1) des termes qui lient expressément la
n’avaient pas auparavant présenté une demande Couronne «Sa Majesté est liée»; (2) une intention claire
d’autorisation de pourvoi à notre Cour. de lier qui, selon les termes de l’arrêt Bombay, «ressort
du texte même de la loi, en d’autres termes, une intention
Dispositif qui ressorte lorsque les dispositions sont interprétées dans
le contexte d’autres dispositions, comme dans l’arrêt
Pour ces motifs, je suis d’avis de rejeter le pourvoi, sauf Ouellette, précité; et (3) une intention de lier lorsque
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FRIENDS OF THE OLDMAN RIVER
l’objet de la loi serait «privé[...] de toute efficacité» si écarterait la possibilité de responsabilité civile. Dans
l’Etat n’était pas lié ou, en d’autres termes, s’il donnait l’arrêt Champion c. City of Vancouver, (1918) 1 W.W.R.
lieu à une absurdité par opposition à un simple résultat 216 (C.S.C.), le juge en chef Fitzpatrick de notre Cour a
non souhaité). Ces trois éléments devraient servir de statué, aux pp. 218 et 219, que:
guide lorsqu’une loi comporte clairement une intention
de lier la Couronne. [TRADUCTION] Dans l’examen de l’interprétation à
donner à cette loi [la L.P.E.N., S.R.C. 1906, ch. 115], on
Toutes les parties sont d’avis que la L.P.E.N. ne renferme doit se rappeler que tout ouvrage construit dans les eaux
pas de termes qui «lient expressément» la Couronne. A navigables ne gêne pas nécessairement la navigation de
mon avis, on ne peut soutenir qu’il existe une intention façon à constituer une obstruction illégale. Cependant,
claire de lier la Couronne, qui «ressort du texte même de dans l’affirmative, l’ouvrage pourrait être enlevé par
la loi». En prenant cette décision, on doit se limiter à ce l’autorité compétente. En conséquence, il est à l’avantage
que dit le texte législatif. Nous ne devons pas oublier des personnes qui se proposent de construire des
que l’arrêt Province of Bombay v. Municipal Corporation ouvrages, pour lesquels il n’existe pas de sanction, de
of Bombay, (1947) A.C. 58 (C.P.), n’est plus applicable pouvoir obtenir, préalablement au début des travaux,
compte tenu des dispositions expresses de la Loi l’approbation du gouverneur en conseil en vertu de l’art.
d’interprétation 24, sauf dans la mesure où il est adopté 7; cette disposition ne fait toutefois qu’accorder une
comme dans l’arrêt Alberta Government Telephones, qui, permission et ne prévoit pas de conséquences une fois
à mon avis, est l’arrêt de principe. l’approbation obtenue; elle ne rendrait certainement pas
légal un ouvrage qui serait illégal. Toute atteinte à un
La Société intimée doit en conséquence démontrer que droit public de navigation est une nuisance à laquelle les
la L.P.E.N. serait privée de toute efficacité ou donnerait tribunaux peuvent mettre fin, nonobstant l’approbation
lieu à une absurdité si la Couronne n’était pas liée. Je qu’aurait pu donner le gouverneur en conseil en vertu de
dois garder à l’esprit l’arrêt Bombay, dans lequel le l’art. 7. (Je souligne.)
Conseil privé a dit que si l’intention du législateur est de
lier la Couronne, [TRADUCTION] «rien de plus facile 2. Les pouvoir discrétionnaire
que de le dire en toutes lettres» (p. 63).
Les redressements sollicités par la Société intimée sont
Si la Couronne n’est pas liée, cette situation donne-t- discrétionnaires: Harelkin c. Université de Regina (1979)
elle lieu à une absurdité? L’existence d’un vide ne suffit 2 R.C.S. 561, à la p. 574: «On ne peut contester le principe
pas: Alberta Government Telephones, à la p. 283. La que le certiorari et le mandamus sont par nature des
L.P.E.N. s’applique aux entreprises privées et recours discrétionnaires», et D.P. Jones et A.S. de Villars,
municipales; réflexion faite, on se rend compte qu’il Principles of Administrative Law (1985)24, aux pp. 372
existe de nombreux organismes non gouvernementaux et 373.
dont les activités sont régies par la L.P.E.N. L’objet de
la L.P.E.N. n’est donc pas annihilé. Une cour d’appel est justifiée d’intervenir seulement
lorsque le tribunal d’instance inférieure a «commis une
Par ailleurs, les tribunaux ne concluront pas à la mauvaise erreur de principe» ou «n’a pas accordé d’importance
foi de la Couronne lorsqu’elle exerce des activités qui (ou qu’il n’a pas accordé suffisamment d’importance)
pourraient à d’autres égards être réglementées. aux considérations dont il aurait dû tenir compte.»:
Polylok Corp. c. Montreal Fast Print (1975) Ltd, (1984)
Si la Couronne porte atteinte aux droits publics de 1 C.F. 713 (C.A., aux pp. 724 et 725.
navigation, il est possible de la poursuivre en justice.
Bref, on ne peut soutenir que la L.P.E.N. sera privée La Cour d’appel fédérale a clairement commis une erreur
d’efficacité en raison des actes de l’Etat. La en rejetant la conclution du juge des requêtes relativement
réglementation des activités non gouvernementales est à la question du retard, conclusion dont elle «doute»
vaste et on ne peut soutenir que l’objet de la L.P.E.N. est qu’elle soit bien fondée dans son principe. La Cour
privé d’efficacité. d’appel affirme que la Société intimée n’a eu
connaissance de la décision d’accorder l’approbation en
Il me faut mentionner brièvement l’argument que vertu de la L.P.E.N. qu’environ deux mois avant que les
l’appelante l’Alberta, en invoquant l’application de la procédures ne soient entamées. En fait, l’intimée avait
L.P.E.N., aurait accepté d’être assujettie à la été mise au courant de l’approbation quelque 14 mois
réglementation en matière environnementale. Il n’y a auparavant et les principaux promoteurs de la Société le
pas d’avantage important lié à l’approbation en vertu de savaient même avant.
la L.P.E.N. Il peut y avoir ouverture à responsabilité
civile. La L.P.E.N. ne confère pas expressément La Common law a toujours exigé du requérant qu’il agisse
d’avantages. Par ailleurs, il n’est pas évident que avec diligence lorsqu’il sollicite des recours
l’approbation accordée en vertu de l’art. 5 de la L.P.E.N. extraordinaires;
509
JUDICIAL DECISIONS IN MATTERS RELATED TO ENVIRONMENT/NATIONAL DECISIONS VOLUME I
En raison de leur caractère discrétionnaire, les recours Québec, L.R.Q., ch. C-25, qui s’applique à tous les
en révision judiciaire, extraordinaires ou ordinaires, recours extraordinaires, dispose que la requête doit être
doivent être exercés avec diligence. Comme le rappelait signifiée «dans un délai raisonnable». La Cour d’appel
dans un langage imagé le juge Donaldson, de la Cour du Québec a statué dans l’arrêt Syndicat des employés
d’appel de l’Angleterre, dans R. v. Aston University du commerce de Rivière-du-Loup (section Emilio
Senate (1969) 2 Q.B. 538, à la p. 555): [TRADUCTION] Boucher, C.S.N.) c. Turcotte, (1984) C.A. 316, à la p.
174 Les réparations par voie de brefs de prérogative sont 318: «Cet article (835.1) n’a fait que codifier la règle de
de nature exceptionnelle et ils ne devraient pas être mis la common law que ce recours doit être exercé dans un
à la disposition de ceux que tardent à exercer leurs droits» délai raisonnable.»
(R. Dussault et L. Borgeat, Traité de droit adminsitratif Au moment où le présent recours a été exercé, le barrage
(2e éd. 1989), t. III, à la p. 660). était complété à 40 pour 100. Un bon montant de deniers
publics avait déjà été dépensé. Il est établi que les
Le juge en chef Laskin de notre Cour a reconnu cette membres de la Société intimée étaient au courant de
obligation dans l’arrêt P.P.G. Industries Canada Ltd. c. l’approbation accordée sous le régime de la L.P.E.N.
Procureur général du Canada, (1976) 2 R.C.S. 739, aux avant le mois de février 1988. Même s’ils ne l’étaient
pp. 749 et 750: pas, la Société intimée aurait pu intenter son action au
début de 1988. À cette époque, les travaux importants
À mon avis, les requêtes en annulation déposées par le de construction n’avaient pas encore commencé. Si la
procureur général sont sujettes au pouvoir discrétionnaire société intimée avait alors intenté ses poursuites au lieu
des tribunaux tout autant que le sont sans conteste ses de le faire en avril 1989, l’appelante l’Alberta aurait été
requêtes pour l’obtention d’un bref de prohibition ou ses en bien meilleure position pour évaluer objectivement
demandes de jugement déclaratoire. La présente cause tout risque juridique lié à la poursuite des travaux. Face
est éminemment propice à l’exercice du pouvoir à l’éventuelle invalidité de l’approbation du fédéral, elle
discrétionnaire qui permet de refuser le redressement aurait bien pu décider alors de ne pas investir les deniers
demandé par le procureur général. Au premier rang des publics comme elle l’a fait.
facteurs qui m’inclinent en ce sens il y a le retard
inexpliqué de deux ans qui a précédé la contestation de Après avoir consacré de nombreuses années à une
la décision du Tribunal antidumping. [Je souligne.) planification intense, tenu d’innombrables audiences
publiques, réalisé un grand nombre d’études et de
L’importance d’agir avec diligence dans les demandes rapports en matière d’environnement et établi divers
de bref de prérogative a également été reconnue dans la conseils et comités chargés de l’examen des propositions
plupart des textes législatifs qui régissent maintenant la présentées, l’appelante l’Alberta s’est lancée dans une
révision judiciaire. Par exemple, la Loi sur la procédure entreprise d’envergure pour répondre aux besoins de ses
de révision judiciaire de l’Ontario, L.R.O. 1990, ch. J.1, électeurs. Elle l’a fait aux frais du public, mais après
permet à un tribunal de proroger le délai fixé pour avoir été avisée par le gouvernement fédéral qu’elle
présenter une requête en révision judiciaire, mais pouvait légitimement le faire. Le barrage de la rivière
seulement s’il est convaincu qu’il existe à première vue Oldman nécessite certes une administration globale. Sa
un motif pour accorder le redressement et qu’aucune construction comporte également un nombre important
personne touchée par la prorogation ne subira de de contrats avec des tiers. Compte tenu de l’envergure
préjudice grave (art. 5). En vertu de la Judicial Review du projet et des intérêts en jeu, il n’était pas raisonnable
Procedure Act de la Colombie-Britannique, R.S.B.C. que la Société intimée attende 14 mois avant de contester
1979, ch. 209, une demande de révision judiciaire peut la décision du ministre des Transports. Dans le présent
être prescrite par l’écoulement du temps dans le cas où contexte, la Société intimée devait absolument respecter
un tribunal estime que le retard causerait un préjudice l’obligation de diligence de la common law.
important (art. 11). Le paragraphe 28(2) de la Loi sur la
Cour fédérale, L.R.C. (1985), ch. F-7, dispose que toute Si la Société intimée avait agi d’une façon plus diligente,
demande de révision judiciaire devant la Cour d’appel l’appelante l’Alberta aurait pu évaluer sa position sans
fédérale doit être présentée dans les dix jours qui suivent tenir compte de l’engagement économique et
la première communication de la décision ou de administratif qui était mis en oeuvre au moment où les
l’ordonnance attaquée. Ce délai ne peut être prorogé présentes procédures ont été intentées. Il est impossible
qu’avec l’autorisation de la cour. En Alberta, le par. de conclure que l’appelante l’Alberta n’a pas subi de
753.11(1) des Alberta Rules of Court (Alta. Reg. 390/ préjudice en raison du retard. Par ailleurs, le juge des
68) dispose que si le redressement sollicité est requêtes a évalué le préjudice et a statué que rien ne
l’annulation d’une décision ou d’un acte, la demande de justifiait d’attendre pour entamer la présente contestation
révision judiciaire doit être déposée et signifiée dans les que le barrage soit complété pour près de 40 pour 100.
six mois qui suivent la décision ou l’acte en question.
Enfin, l’art. 835.1 du Code de procédure civile du On exige que les auteurs d’une demande de bref de
510
FRIENDS OF THE OLDMAN RIVER
prérogative agissent avec diligence pour permettre aux qui précèdent, je suis d’avis de conclure que l’on n’a pas
intimés de donner suite au pouvoir qui leur est conféré. satisfait à ce critère en l’espèce.
Le requérant ne peut justifier son retard en soutenant que
l’intimé a fait ce qu’il avait légalement le droit de faire. 3. Les dépens
Ce point de vue favoriserait les retards et induirait en
erreur les personnes qui ont l’intention de présenter une À mon avis, il n’est pas justifié d’adjuger les dépens
demande de bref de prérogative. comme entre procureur et client en faveur de la Société
intimée. En règle générale devant notre Cour, la partie
Mon collègue le juge La Forest accorderait également qui a gain de cause a droit aux dépens sur la base des
une certaine importance au fait que l’appelante l’Alberta frais entre parties. C’est la règle que les tribunaux
était au courant de l’opposition de la société intimée et d’instance inférieure ont appliquée. Mon collègue
des autres parties en raison des autres contestations propose une adjudication des dépens comme entre
infructueuses intentées par celles-ci. À mon avis, ces procureur et client dans toutes les cours. Rien n’indique
contestations ne sont aucunement pertinentes en l’espèce. que les tribunaux d’instance inférieure ont commis une
Elles étaient toutes mal fondées et l’appelante l’Alberta erreur et je ne vois pas pourquoi il faudrait déroger à
n’avait pas à s’attendre que ces poursuites connexes et notre règle générale. Les groupes d’intérêt public doivent
incidentes laissaient présager une contestation être disposés à se plier aux mêmes principes que les autres
fondamentale du permis initial. Le fait que des plaideurs. Si l’on établissait des règles spéciales pour
détracteurs manifestent du mécontentement au sujet d’un ces groupes, on mettrait en danger l’application d’un
train en marche ne nous met pas en garde contre la important principe: ceux qui intentent des poursuites
possibilité qu’ils en contestent l’autorisation de mise en doivent être disposés à accepter une certaine
route. À mon avis, le juge des requêtes n’avait pas à responsabilité quant aux dépens. En l’espèce, je ne vois
tenir compte de ces activités. Aucune des activités de la rien qui justifie d’imposer aux contribuables qu’ils
Société ou de ses membres n’empêchait la Société assument les dépens comme entre procureur et client pour
intimée d’entamer la présente contestation. le compte de cette partie.
Les activités mentionnées par mon collègue étaient 4. Conclusion
qualitativement différentes de celles visées par la présente
action et n’ont aucune pertinence en l’espèce. Les Je suis d’avis d’accueillir le pourvoi avec dépens.
demandes de bref de certiorari présentées par la Société
intimée en octobre 1987 et au début de 1988 visaient des Pourvoi rejeté, sauf qu’il ne sera pas délivré de bref de
permis provisoires délivrés par le ministre de la nature d’un mandamus ordonnant au ministre de
l’Environnement de l’Alberta, sous le régime de la Water Pêches et des Océans de se conformer aux lignes
Resources Act, R.S.A. 1980, ch. W-5, de cette province. direcrices fédérales en matière d’environnement. Le juge
La demande auprès de l’Energy Resources Conservation STEVENSON est dissident.
Board de l’Alberta portait sur les aspects hydroélectriques
du barrage. La dénonciation faite sous serment devant Procureurs de l’appelante Sa Majesté la Reine du chef
un juge de paix mentionnait une infraction de la Loi sur de l’Alberta: Milner & Steer, Edmonton.
les pêches, L.R.C. (1985), ch. F-14.
Procureur des appelants le ministre des Transports et le
Le présent pourvoi porte sur la constitutionnalité et ministre des Pêches et des Océans: John C. Tait, Ottawa.
l’applicabilité du Décret sur les lignes directrices visant
le processus d’évaluation et d’examen en matière Procureurs de l’intimée: Gowling, Strathy & Henderson,
d’environnement. Il soulève des questions nouvelles et Ottawa.
différentes. Les efforts déployés auparavant par la
Société intimée n’étaient pas des préliminaires Procureurs de l’intervenant le procureur général du
nécessaires; il s’agissait là de recours distincts et Québec: Jean-K. Samson, Alain Gingras et Denis
différents du redressement sollicité en l’espèce. À mon Lemieux, Ste-Foy.
avis, pour déterminer s’il devait exercer son pouvoir
discrétionnaire contre la Société intimée, le juge en chef Procureur de l’intervenant le procureur général du
adjoint Jérome devait examiner seulement les facteurs Nouveau-Brunswick: Le procureur général du Nouveau-
qui, selon lui, se rattachaient directement à la demande Brunswick, Fredericton.
dont il était saisi. Il était clairement le mieux placé pour
évaluer la pertinence de ce que les parties lui ont présenté. Procureur de l’intervenant le procureur général du
On n’est justifié d’intervenir à l’égard de l’exercice de Manitoba: Le procureur général du Manitoba,
son pouvoir discrétionnaire, que si l’on peut affirmer avec Winnipeg.
certitude qu’il a eu tort de procéder ainsi. Pour les motifs
511
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