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What an Australian Court Can Teach India About Climate-Conscious Governance

What an Australian Court Can Teach India About Climate-Conscious Governance

Representative: Night work at the Carmichael coal mine, Queensland, Australia, in September 2020. Photo: Cameron Laird/Wikimedia Commons, CC BY-SA 4.0

A recent case, Abdul Basheer v. Kochi Corporation, before the National Green Tribunal, concerned the pollution of the Kadambrayar and Chitrapuzha rivers in Kerala. The state pollution control board alleged that they had been polluted by the release of toxic effluents from the Brahmapuram waste treatment plant. The board alleged wilful negligence and mismanagement on the part of the Kochi Corporation.

The corporation had acquired land, built the waste treatment plant and was responsible for its management. The NGT subsequently held the corporation liable and imposed a fine of Rs 1 crore and a permanent guarantee deposit of Rs 3 crore. NGT also made the corporation regularise the treatment plant in six months.

Curiously, according to the 2016 Solid Waste Management Rules, the member-secretary of the state pollution control board has to authorise the establishment of a treatment or processing plant.

Earlier, in September 2020, eight young people from Australia filed a putative class action suit in Australia’s Federal Court against the country’s government. The plaintiffs were opposed to the government’s decision to approve extension of the Whitehaven Vickery coal mine under the Australian Environment Protection and Biodiversity Conservation Act. They argued that the federal minister had a common law duty of care towards young people, based on the fact that digging and combusting coal would exacerbate the impact of climate change and harm the group of people they represented.

In its judgment (Sharma v. Minister for the Environment) on May 27, the court established a new personal duty of care for the minister to avoid causing harm to children. And in doing so, the court found that the foreseeable harm from the project would be “catastrophic” and that the children would be directly affected. So the minister ought to consider their interests when making decisions

To establish the duty of care in this way, the court relied on some salient factors: reasonable foreseeability and nature of the harm; nature of control able to be exercised by the minister to avoid harm; the children’s vulnerability; and the relationship between the minister and the children.
These factors can be extended to the Indian scenario, vis-à-vis approving the waste treatment plant near the Kadambrayar and the Chitrapuzha rivers. The state pollution control board has subjected the residents of these areas to increased risk of diseases, resulting from the toxins in the water bodies. This counts as prospective harm to the health of such residents, and can well be classified as ‘physical injury’.

The Australian court also established reasonable foreseeability of physical harm if, at the time of approval, there existed a real risk of the harm occurring. In addition, the harm to the population in question should not be remote.

Similarly, the pollution control board’s approval of a waste treatment plant close to the two rivers increased the risk of release of toxins into these rivers. Therefore, the risk of physical injury to the residents was real, reasonably foreseeable and not at all remote.

The Australian court also found that the minister had direct control over the foreseeable risk because “it is her exercise of power upon which the creation of that risk depends”. Similarly, it is in the board’s exercise of power that the creation of risk to the residents’ health depends. So there is a direct relationship between the board’s exercise of power and the risk of harm to the area’s residents of that area resulting from the exercise.

Taken together, all of the risk of harm flowing from that exercise of power was in the board’s control. The board also has the responsibility to safeguard the health of the environment and of those people whose safety depends on it. The residents of the area look to the board for assistance in relation to their vulnerability, and in their relations with the board there exists “a form of dependency encapsulated by ‘reliance’,” to borrow the Australian court’s words.

The court considered human life as a “mandatory consideration” in any decision that the minister takes. Accordingly, “protection of life and limb” is the most essential factor when considering any project authorisation by the minister.

The Chitrapuzha and the Kadambrayar flow into the nearby Vembanad lake, a lifeline for the people living in that area. Therefore, the Kerala Pollution Control Board is duty-bound to consider such indirect impacts of the projects as well.

The minister in the Australian case contested the plaintiffs’ allegations by saying that holding personal liability would lead to an indeterminacy of factors. This indeterminacy was about the number of potential claimants, number of claims, time, etc. But the court quickly rejected this contention, holding that other factors would help mitigate the indeterminacy. The other factors are reasonable foreseeability, causation, coherence with public policy, etc. The court also added that no single government or organisation could be responsible for climate change.

The Sharma case is an excellent example, and much needed in the current scenario of deteriorating environmental conditions. The harm such deterioration causes to human life is more often than not the result of public bodies authorising poorly conceived projects sans due care. So it is essential to vest a ‘duty of care’ with the authority-giving persons as well, as a way to prevent callous and negligent decision-making on their part.

Itisha Awasthi is a graduate of National Law University, Delhi, and is pursuing a masters in environmental law from the University of Melbourne. Anushka Sachdev is a graduate of National Law University, Delhi, and an incoming LLM candidate at the Munich Intellectual Property Law Centre, Germany.

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