The liability for causing harm to the environment can be implemented as both criminal and civil liability. In considering the criminal liability for acts such as the killing or the smuggling of protected species and plants, the authorities impose both physical and financial punishments and fines on the perpetrators. On the other hand, when considering the civil liability for environmental harm, it primarily focuses on imposing financial liability on those who either directly or indirectly cause harm to the environment. However, one of the more significant issues in the liability regime concerning environmental damage lies in the quantification of damages, as many of the legal instruments attempt to give a threshold for imposing liability for environmental harm. For example, the National Environment Act, No. 47 of 1980, with its regulations and directives, prescribes certain ceilings that must be met to require an applicant to obtain an environmental protection licence, while activities falling below such a threshold, though they may have adverse impacts upon the environment, do not require such a licence. 

Another issue to be considered is the basis for imposing liability upon those who cause harm to the environment which may lead to man-made environmental disasters. If one were to insist on a fault based liability regime for environmental harm and man-made environmental disasters, it would be, according to the United Nations Environment Programme’s “Liability and compensation regimes relating to environmental harm”, too difficult to hold the perpetrators responsible for their actions or omissions which would cause environmental damage, eventually leading to a man-made environmental disaster, since proving fault and causation would be difficult. This must be also considered with the fact that much of the environmental harm which would eventually have the capability of resulting in a man-made environmental disaster would be created not by individuals acting in an isolated manner, but by major industries and multinational corporations which would be able to spend big in claiming their innocence. On the other hand, if one were to argue for a liability regime based on strict liability in imposing liability upon those who cause environmental damage or destruction which could lead to man-made environmental disasters, such would be more viable than a fault-based regime, wherefore, strict liability would only require the proof of the action irrespective of the intention, and especially in cases of environmental damage, that should be the approach as it would also help to take out the inequality of the power between the perpetrator and those who are affected by their actions. 

Even if one were to agree upon a basis for imposing liability, the need for proving the nexus between the cause and the effect would remain. In simple terms, this would mean that anyone claiming to hold those liable for causing environmental harm that leads to man-made environmental disasters would have to prove that the environmental disaster occurred due to the activities or the omissions of the perpetrators and that there is a direct link between the two. To prove such a contention, it would be paramount, as P. Cane’s “Is environmental harm special?” observes, to have scientific evidence with absolute precision as there would be no room for speculation, and once speculation begins, the benefit of the doubt will always favour the perpetrators. However, it is to be noted that if there is a lack of scientific evidence which could conclusively prove that the actions or the omissions of the perpetrators have had a direct effect on the environmental damage which has resulted in a man-made environmental disaster, it should not always be in the benefit of the perpetrators, as pointed out under Principle 15 of the Rio Declaration on the Environment and Development of 1992 which states: “Where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.” This Principle, in turn, should also mean that where there is a lack of scientific evidence to sustain a claim for imposing liability upon those who have contributed to man-made environmental disasters, they should be left free simply because of a lack of scientific evidence which links their actions or omissions to the harm that they have caused. While under the existing regime governing the responsibility of those who have caused damage to the environment, it is somewhat difficult to hold them liable for the harm that they have caused to the environment which could lead to a man-made environmental disaster, it is also very challenging to prove the nexus between their actions or omissions with the harm caused to the environment. 

In attributing liability to those who cause environmental harm, P. Dupuy’s “International environmental law” points out that the “polluter pays” principle has gained acceptance in the international arena, with some arguing that it is considered a principle of customary international law. The polluter pays principle simply denotes that he/she who causes harm must also take action to and compensate for restoring the environment to its original status. However, the principle is used in a broader sense in the environmental context within the ambit of externalities. Where manufacturers make a gain through production which creates negative externalities, the profits that are enjoyed by those who directly take part in such activities will only bear a small portion of the negative externalities it generates, when compared to the third parties who would, while not enjoying any benefits from such production activities which would bring profits to a handful of individuals, would nonetheless have to bear the brunt of the negative externalities that are caused to the environment. 

In essence, the polluter pays principle tries to, as elaborated in S. Alam’s Routledge handbook of international environmental law, internalises the negative externalities. The polluter pays principle, as mentioned in A. Gaur, S.K. Gurjar and S. Chaudhary’s “Circular system of resource recovery and reverse logistics approach: Key to zero waste and zero landfill”, first emerged explicitly in 1972 in the Council Recommendations of the Organisation for Economic Cooperation and Development (OECD). The same organisation, in 1992, according to this principle, declared that “the polluter should bear the expenses of carrying out the measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in the production and/or consumption.” Such measures, according to the OECD’s “The polluter pays principle OECD analysis and recommendations”, should not be accompanied by subsidies that would create significant distortions in international trade and investment. The main point to be emphasised here is the fact that the polluter pays principle should only be utilised where it is possible to rectify the harm caused to the environment through compensation. In a broader sense, it means that the internalisation of negative externalities should only be allowed if it is economically possible from the perspective of the environment, and where a certain threshold is to be exceeded where, if it becomes impossible to compensate the damages caused, one should not be able to buy the harm that he/she is going to cause to the environment. In such an instance, it is best to prevent the harm from occurring rather than imposing liabilities upon the polluters as compensation would not become adequate to rectify the harm caused to the environment. 

The polluter pays principle, as mentioned in A. Edirisinghe and P. Wijesooriya’s “Let he who pollutes pay the price: An analysis of the application of the polluter pays principle in Sri Lanka, India and international law” and P. Wijesooriya’s “A paradise with waste: A case study of the polluter pays principle into the human-made environmental pollution by waste with special reference to the Chunnakam decision (Ravindra Gunawardena Kariyawasam vs. The Central Environment Authority and Others – Supreme Court [SC] bench, President's Counsel [PC] and late Justice Prasanna Jayawardena, Justices Priyantha Jayawardena PC and L.T.B. Dehideniya [retired]) and the Bulankulama phosphate decision (Bulankulama and Others vs. Secretary, Ministry of Industrial Development and Others/Eppawela case – SC bench, Justices Dr. A.R.B. Amerasinghe, S.W.B. Wadugodapitiya PC and Wilmot Gunasekera)”, has been utilised by the Sri Lankan Judiciary on numerous occasions, including the celebrated Eppawela phosphate case where Justice Dr. Amerasinghe held that: “The costs of environmental damage should be borne by the party that causes such harm rather than being allowed to fall on the general community to be paid through reduced environmental quality or increased taxation in order to mitigate the environmentally degrading effects of a project.”

In the Chunnakam case, the Court held that the polluter pays principle has been recognised in many parts of the world, including many cases in India and in Principle 16 of the Rio Declaration on the Environment and Development which refers to the said principle, and that there is no issue with utilising the said principle in the present case. In the more recent Wilpattu case (Centre for Environmental Justice [Guarantee] Limited vs. Anura Satharasinghe, Conservator General of Forests, and Others - Court of Appeal [CoA] bench, Justice Janak De Silva [as he was then - incumbent SC Judge] and N. Bandula Karunarathna [as he was then - incumbent CoA President]), the issue related to a resettlement plan for settling internally displaced people in the North. The Minister in charge of Industry and Commerce has taken steps to relocate the internally displaced persons in a forest land which was protected under the Forest Ordinance, No. 16 of 1907 as amended. The Court found that the Minister had acted ultra vires (acting beyond ones’ legal powers or authority)  in respect of the powers granted to him under the statute and that he should be held personally liable to replant the trees that were either cut down or destroyed because of the resettlement plan and that this should be done within two months from the judgement. The Court extensively referred to the polluter pays principle in arriving at its decision. However, even at the beginning of 2022, there is no report as to whether the Court order has been complied with.

(Konasinghe is a Professor in the Department of Public and International Law of the Faculty of Law of the University of Colombo and Thilakarathna is a Lecturer [Unconfirmed] of the same Faculty.)

The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.