what is the environmental rule of law?
It was in 2013 when the Governing Council of the United Nations Environment Programme (‘UNEP’) through Decision 27/9 established the term ‘environmental rule of law’ (Hereafter referred to as EROL) while recognising that rule of law with effective environmental governance is instrumental in securing sustainable development and called upon municipal governments to establish and implement EROL within their jurisdictions.
As the name suggests, EROL seeks to incorporate the concept of ‘rule of law’ into environmental governance at all levels – i.e. national and local to deal with the dual challenge of lack of incentives and voluntary compliance to environmental safeguards and the underperforming implementation and enforcement of environmental law in general.
UNEP’s First Global Report on Environmental Rule of Law released in 2019 defines EROL as having 3 interdependent components –
- That environmental law must be consistent with Fundamental Rights.
- That the law should be developed inclusively while giving regard to all stakeholders especially, the vulnerable and marginalised groups and must be fairly and equitably executed.
- That law should enforce accountability both in theory and practice, i.e., to ensure strict compliance and adherence to the law.
It was in the case of Hanuman Laxman Aroskar v. Union of India that the Supreme Court of India first applied EROL to put aside an environmental clearance (EC) granted for the construction of an international airport in Goa for not complying with due process under the 2006 EIA (environmental impact assessment) notification. The judgement, written by Justice DY Chandrachud, recognises the need for a rule of law paradigm with environmental governance through a regime of accountable, transparent and effective institutions.
EROL’s role in ensuring effective environmental governance
Environmental governance encompasses a wider range of goals and methods for formulating and executing decisions concerning the environment while EROL emphasises the implementation aspect of these decisions. There are two distinct characteristics of EROL which differentiate it from environmental governance in general- First, EROL is based upon ensuring intergenerational equity where it considers the impact of developmental activities or any other governmental action in the long run and seeks to protect the collective and individual interests of both the present and future generations over long timescales comprising even several centuries. Secondly, EROL encompasses and visualises the precautionary principle in decision-making so that even in the face of scientific uncertainty the government does not hesitate to take action to ensure environmental protection. EROL provides for public participation, information disclosure, effective implementation and accountability mechanisms, enforceable and implementable laws, well-oiled coordination, environmental auditing and also impartial, timely and independent dispute resolution.
Rule of law contains both procedural and substantive elements which when incorporated with environmental governance would help in promoting sustainable development. The procedural elements require that all decision-making by the 3 organs of governance must be per the already established law and better administrative justice. It would require the government to be accountable and exercise good environmental governance practices. On the other hand, the substantial element of ROL would be used to create, improve, and maintain the substantive ‘goodness’ of environmental laws and is considered concerning environmental constitutionalism which would create a framework which prioritizes fundamental rights, universal moral values, international environmental principles and ethics. EROL empathises public participation at all levels of environmental governance whether it be decision-making, considering moral and ethical obligations, etc. and thus provides legitimacy and incentive to comply with the environmental laws and gives the judiciary the authority to adjudicate even in the case of scientific uncertainty.
The main reason behind envisioning environmental governance with EROL is to provide consistency in law and bridge the gap between theory and practice of environmental law without which environmental governance is more susceptible to arbitrariness. The EROL framework today is not just an option but a demand for effectively combating and mitigating environmental degradation, the climate crisis, the unsustainable levels of waste generation, ensuring individual and community rights of indigenous groups etc.
Environmental rule of law – The engine driving the growth of sustainable development
Environmental Rule of Law is instrumental and is at the very core of the Sustainable Development Goals. Goal no. 16 of the SDGs commits to cultivating the “rule of law at the national and international levels” for “promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels”.
In Hanuman Aloskar Case, Justice Chandrachud stated that EROL provides the essential platform which underpins all four pillars of sustainable development- environmental protection, economic, social and peace. It encourages both intra-generational and intergenerational equity.
In Bengaluru Development Authority v. Sudhakar Hegde, the Supreme Court highlighted how EROL balances both the considerations of development and environmental protection (which in an adversarial legal system can often result in the overpowering of one over the other) by “creating transparent and accountable institutions while allowing participatory democracy”. In Md. Hayath Udin v. Union of India, the National Green Tribunal (NGT) stated that the threefold safeguards- conceptual, institutional, and procedural- comprising EROL must not be considered to conflict with the developmental needs of the country but are, in fact, a facet of development itself. EROL envisions a development that is sustainable and recognised by the country in the form of a legislative framework and the best environmental practices.
While the Supreme Court of India has itself recognised the limitations of EROL in environmental governance in H. P. Bus Stand Management Development Authority v. CEC by pointing out that it was no panacea for setting a clear set of solutions for every case, nevertheless, it provides a necessary framework to ensure predictability in judicial decisions while maintaining sustainable development at its core. Although it faces the major step back which always haunts all decision-making, i.e., it cannot quantify the precise harm caused to the environment by an activity, it was with the help of EROL that the need for broad and judicially recognised principles of environmental law in environmental adjudication is realised. It is EROL which truly acknowledges the everlasting tug-of-war between development and environmental protection and provides a roadmap to deal with cases where there is a lack of clear evidence of environmental consequences. It is EROL which enhances the ability of governments and stakeholders to strengthen their resilience to address these differences in a structured, logical, and peaceful manner, ultimately benefiting both the environment and society as a whole.
Author(s) Name: Sadia Hasan Khan (Hidayatullah National Law University, Raipur)