Author : Keshav Narnolia
The guns of Environmental Laws at the hands of the National Green Tribunal seems to have misfired in the case concerning styrene gas leak in Vizag from the premises of LG Polymers on 7th May 2020. The NGT in its interim order in the instant case held that “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in hazardous or inherently dangerous industry“. This article would look upon the ingredients of ‘strict liability’ which the NGT applies with fondness and how well it blows with the winds of the settled principles of environmental laws in India.
The environmental jurisprudence of India has been very promising. From the case of Ratlam Municipality where Krishna Iyer J. famously quoted that “The dynamics of the judicial process has a new ‘enforcement’ dimension not merely through some of the provisions of the Criminal Procedure Code (as here), but also through activated tort consciousness“. This conciousness was seen in the Oleum Gas Leak Case when the court formulated the principle of “Absolute Liability” when it found that the remedies of 19th century fell short for the nuisances of the 20th century. The court declared itself with the power to fashion and forge new remedies under article 32 of the Indian Constitution. Since then there has been no foot-back on the evergreening and widening of the mandate of Article 32 and the judicial crafts of developing environmental principle(s) from recogninzing the liability of polluters to recognizing of the rights of affected people and finally the “environment”. In another article, the evolution of environmental jurisprudence in India by the Supreme Court has been discussed in great lengths. This article focuses whether the recent NGT order been able to be play its ace with the settled principles of environmental law or it derails from the governing principles to provide a polluter friendly ground?
On 8th May the NGT in the case of Styrene Gas Leak (Vizag Case) passed an interim order stating that the leakage from the LG industry qualifies to be penalized under the principle of “strict liability”. Strict Liability is an english tort principle evolved in the Court of Exchequer Chamber in the 1868 case of Rylands v. Fletcher. The uncomplicated facts of the case were that Rylands employed contractors on his land to build a reservoir by digging the earth. The adjacent land belonged to Fletcher which had old coal shafts in it. On one fine day when the reservoir was filled, it burst out and flooded the neighbouring coal mines of Fletcher, resulting in heavy losses. Lord Blackburn in the Court of Exchequer Chamber famously opined 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 at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff’s default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” This was later affirmed by the House of Lords. So the principle of “Strict Liability” rests on four requirments as expounded by Lord Blackburn viz.-
- Did the defendant brought something onto his land?
- Was there a non-natural use of land?
- Was the thing likely to do mischief if it escapes?
- Did the thing escape from defendant’s land?
The defences which are available to the defendant for a tort of strict liability are –
- Where the thing which escapes is naturally in the land.
- It is brought with the consent of the person injured.
- It escapes due to an Act of God, default of the person injured or an act of stranger.
- Done by a statutory authority.
The Sup. Ct. in the Oleum Gas Leak case held that “We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England…and we cannot countenance an argument that merely because the new law does not recognise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and responsibilities. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part…the measure of compensation in such cases must be co-related to the magnitude and capacity of the enterprise…the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise“.
Therefore absolute liability differs from strict liability on grounds that if “hazardous” activity is carried out by the industry and such hazardous substance either escapes the industry or affects the lives of the workers in the industry, there shall be no defence available at all to the industry and it shall be absolutely liable. Also the measure of compensation would be co-related to the magnitue of the industry dealing with such hazardous activity. So, it does not matter whether the thing which escapes is natutally occuring in land or artifically brought. Absolute Liability will apply if the case involves an escape of hazardous substance. It is ofcourse wrong to presume that the “new principle” has erased the use of strict liability in India. The new principle is only with regards to hazardous substance. For example, if the case of Rylands were to happen in India today, the principle of strict liability would only govern as “water” which escaped is not hazardous.
In the present case, it is therefore imperative to see whether the “styrene” gas which escaped the premises of LG Polymers is hazardous or not? As already discussed, the gas has claimed lives of 12 persons and affected lives of hundreds of villagers. Moreover the impugned NGT order clearly reads out that “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of Strict Liability“. Therefore, the bench agrees that the gas which escaped is hazardous. Also, as per the prima facie findings, the gas leak is a result of failure by the company to comply with the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, that requires the company to maintain on-site and off-site emergency plans to ensure prevention of damage. Therefore since the case involved the escape of an hazardous gas (styrene) and the safety standards in the industry were also compromised, the law in such cases, compulsorily mandates the industry to be “absolutely liable”. Moreover, by applying the principle of strict liability, it absolves the polluter from paying the compensation in proportion to the magnitude of the enterprise which is otherwise dictated by “absolute liability”. In addition, it opens a possibility of multiple defences available to the polluter. A simple misfire by the NGT would help the polluter (LG Polymers) escape its liability or at least delay it in lengthy litigations. The NGT by the present order, as is evidentiary established, has confused the settled principle of law by adding two and two equals three and making the present case a polluter friendly experience.
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