Pro|Studies2024 Preliminary Year

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Pro|Studies2024 Preliminary Year

First compiled and distributed in Sri Lanka in 2017 by the pro|studies

No 244, Hultsdorp Street, Colombo 12

Modified/updated and distributed by the ProStudies 2024
No. 244, Hultsdorp Street, Colombo 12

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Pro|Studies2024 Preliminary Year

Associate Editor :
Dr. Ravindranath Dabare
(H.N.D.E) M.Eng M.Th, Ph.D, Attorney-at-Law, Unofficial Magistrate, M.Sc
(Clim. Change & Env.Mgt), LL.M (Int. Env.Law & Clim.Change) (Reading)
Chairman - Centre for Environmental Justice
President - Environment Lawyers' Association of Sri Lanka
Chairman - Environmental Committee of the Bar Association of Sri Lanka

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Pro|Studies2024 Preliminary Year

Pro Studies - Senior Committee

Co-Presidents
Thenuda Imbulagoda
Rashmi Weerasekara

Co-Secretaries
Shifani Azad
Kulanga Grigson

Treasurers
Gayan Jayasinghe
Udani Weerakoon

Editors Vice Presidents

Dinusha Rajapaksha Nimesh Ruchiranga
Dharshitha Dilshan Helanga Epitiwela
Trincy Vidanagamachchi

Project Managers Media Cordinators

Razka Bary Shakthi Jayasinghe
Methma Yaththalgoda Parathini Mahalingam

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Pro|Studies2024 Preliminary Year

Pro Studies - Junior Committee

Assistant Editor Assistant Secretaries Media Coordinators

Maheesha Pabasara Imandi Dabare Harshi Paramullage
Chethya Bandara Menike Nethmi Viranja Remma Bary
Malindya Wanninayake Nadeeshani Senewirathna Keshani Waduge
Methmi Gamage Mohammed Fahmy M N F Nasla

Event Managers Student Coordinators Junior Edu. Secretaries

Ravini Fernando Andry Michelle Pirathayine Sriragavarajan
Nilakshi Peththawadu R. Majuran Subodha Bandara
Randi Abeyrathna Nithya Basnayaka Upendra Perera
Mohamed Fasmi B Harisakthi Anuruddhi Ranathunga
R. Dean Osbert

Editorial Committee
Medhana Herath
Nuwantha De Alwis
Binara Anthony
Shakya Karunarathne
Kavishwara Ariyawansha
Navithma Perera
Dinara Muthugala
Oluni Anthony
Ishan Lakshitha

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Pro|Studies2024 Preliminary Year

Contents

1. Introduction to Environment Law

2. Directive Principles of State Policy
3. Sustainable Development
4. Public Trust Doctrine
5. Public Interest Litigation
6. Polluter Pays Principle
7. Precautionary Principle
8. Inter Generation Equity
9. Absolute Liability
10. Environmental Protection License
11. Environmental Impact Assessment
12. Public Nuisance
13. Pollution
14. Solid Waste management
15. International Environmental Law
16. National Environmental Act
17. Central Environmental Authority
18. Annexure

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Pro|Studies2024 Preliminary Year

1. Introduction to Environment Law

"Environment" means man and his surroundings.

• This includes the following:

1. the physical or non living (air/water/soil)
2. biotic component (plants/animals/reptiles
3. social components (people and everything they have created) - infrastructure
facilities/economy/culture etc.

• Definition of Environmental Law is Found in section 33 of the National

Environmental Act .

• Every person has a right to live in a healthy and clean environment. protected by
law.
(Adopted by the United Nations Human rights council on 8 th October 2021.)

• Due to rapid growth of industries, increased use of chemical substances in

agriculture; the increase of motor vehicle use; expanding urbanization paved way to
greater generation of wastes . Environmental pollution has become aserious
problem in Sri Lanka; The impact of all these factors has resulted in pollution of
(a) land
(b) water and
(c) air
(d) noise
(e) visual pollution
(A)Unchecked environmental degradation,
(B) non implementation of the laws relating to the protection of environment
(C)unawareness of the danger of pollution and poverty have caused harm to the
present generation and will harm the future generations.
➢ Environmental degradation has a devastating effect on people's lives as they have to
depend on the natural environment for their survival.
➢ Therefore, legal provisions are necessary to protect the rights of the people and the
environment.
➢ Environmental law encompasses many branches of the law such as Constitutional
law, human rights law, administrative law, climate change law ,laws related to
natural resources ,consumer protection law, criminal law,public health law, law of
evidence,intellectual property law, law of obligations and many others.

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2. Directive Principles of State Policy

• Law regulates the behaviour of the people.

• Provisions relating to environment are set out in the constitution of the Democratic
Socialistic Republic of Sri lanka
- Article 27 (14 )
- Article 28 d& f
- Article 29 - Re thirteenth amendment to the constitution

CONSTITUTIONAL PROTECTION OF ENVIRONMENT

• The constitution which is the Supreme Law of our Land has reposed the duty on both
the state and its people to protect environment .

• Chapter 4 of the constitution the Directive Principle of State Policy & Fundamental
duties has imposed certain fundamental duties to protect the environment on every
person in Sri Lanka to protect nature and its riches.

• Article 27 ( 14 ) of the Directive Principles of State Policy states as follows : " The
State shall protect, preserve and improve the environment for the benefit of the
community . "

• Article 28 d,f – Fundamental Duties

The exercise & enjoyment of rights & freedom is inseperable from performance of
duties & obligations.
And accordingly it is duty of every person in Sri Lanka
✓ ( a ) to uphold and defend the Constitution and the law ;
✓ ( b ) to further the national interest and to foster national unity ;
✓ ( c ) to work conscientiously in his chosen occupation ;
✓ ( d ) to preserve and protect public property , and to combat misuse and
waste of public property ;
✓ ( e ) to respect the rights and freedoms of others ; and
✓ ( f ) It is the duty of every person in Sri Lanka to protect nature and its riches .

• Article 28 dealing with fundamental duties states as follows :

“The exercise and enjoyment of rights and freedoms is inseparable from the performance
of duties and obligations , and accordingly it is the duty of every person in Sri Lanka
Though the Directive Principles of State Policy are not justiciable under Article 29 the
Supreme Court has given due recognition to them .”

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• Article 29
states that Directive Principles of State Policy and fundamental duties are not
justifiable , The provisions of this Chapter do not confer or impose legal rights or
obligations , and are not enforceable in any court or tribunal . No question of
inconsistency with such provisions shall be raised in any court or tribunal

• Though Directive Principles are not justiciable under Article 29 Superior Courts have given
due recognition to them.

Case law
VIDE Sugathapala ( Sugathapala Mendis and another vs Chandrika Kumaranathunge and
others
Although it is expressly declared that the Directive principles and fundamental
duties do not confer or impose legal rights or obligations and not enforceable in
any Court or Tribunal . Courts have linked the doctrine and have stated these
principles should guide state functionaries in the excise of their powers.

Senevirathne V U.G.C (1978 ) 1182 .

all relevant provisions of the Constitution
must be given effect when a provision is under consideration"
Article 27(12) - recognition of family as a basic unity.
Re Thirteenth Amendment to the constitution

Justice Sharvanandha observed as follows:

"True the Directive principles of State Policy are not enforceable in a court of law, but
that shortcoming does not detract from their values as projecting the and aspirations of
the democratic Government
WIjebanda V conservator of forests
Tilakawardane J. stated " The constitution in Article 27 ( 14 ) of the directive principles
of state policy enjoins the state to protect , preserve and improve the environment .
Article 28 refers to the fundamental duty upon every person in Sri Lanka to protect
nature and conserve its riches . " .
Environmental Foundation Limited V Mahaweli Authority of Sri Lanka
Ratnayake J observed " Although it is expressly declared in the Constitution that the
Directive principles and fundamental duties ' do not confer or impose legal rights or
obligations and are not enforceable in any Court of Tribunal ' Courts have linked the
Directive principles to the public trust doctrine and have stated that these principles
should guide state functionaries in the excise of their powers . The ( CEA and BOI which
are ) agencies of the State are to be guided by these directive principles and
fundamental duties when carrying out their statutory and regulatory duties .
M.C Mehta V Union of India
Supreme court of India stated that Directive Principles of State Policy collectively and
individually imposes a duty on the state to create condition to the general health level
in the country and to protect and improve the natural environment.
Chunnakkam case SC FR 141/2015

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The Directive Principles of State Policy are not wasted ink in the pages of the
Constitution . They are a living set of guidelines which the State and its agencies
should give effect to . Thus , where a petitioner complains of a violation of his
fundamental rights arising from the breach of a statutory or regulatory duty by
the State or an agency of the State , a demonstration that the violation is also in
contravention of one or more of the Directive Principles of State Policy , will
lend strong support to his case .

• Article 12 ( 1) – equality provisions state that every person is equal before the law
and must have equal protection from the law.
• Under 1978 constitution right to life is not mentioned under any article but Article
11 says that no person shall be subjected to cruel or inhuman or degrading
treatment or punishment.
• But 1972 Constitution Article 18 (b) had “ no person shall be deprived in life ,
liberty or security of person except in accordance with the law,
When comparing Article 11 of 1978 construction and Article 18(b) of 1972, it is
clear that in 1978 constitution there is no direct written fundamental right to life
unlike
• In Indian constitution Article 21. But in several cases judges interpreted the
constitution to show that there is a fundamental right life by considering Article
13(4) and Article126.
• to protect the environment for present & future generation, law itself cannot
protect environment. It is with the people of the country to impose and respect the
law to protect the environment for better future.

I. RIGHT TO LIFE & RIGHT TO LIFE IN A HEALTHY ENVIRONMENT

• Right to life –

• It being the most important human right it implies the right to live in a
clean environment
• Article 21 of the Indian Constitution states that no person shall be
deprived of his life or personal liberty except procedure established
by law.
• Every person has a right to live in a healthy environment
• The relationship between human rights and environment is widely
recognized
• In Sriyani Silva's case,
The Petitioner complained that her husband was subject to extreme
torture that he died soon after.. The Supreme Court examined the

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position of right to life and stated that although the right to life is not
expressly recognized
as a fundamental right, that it is impliedly recognized in some of the
provisions of Chapter Ill of the Constitution.
• Article 13 (4) provides that no person shall be punished with death or
imprisonment
• That is to say a person has a right not to be put to death because of
wrongdoing on his part, except by order of a competent court.

• Thus Article 13 (4) by necessary implication, recognizes that a person

has a right to life at least in the sense of mere existence as distinct
from the quality of life which can be deprived only by a court.

• The right to life and to a healthy environment have been recognized

in intenational instruments relating to human rights and judicial
decisions throughout the world at national ,regional and international
levels.

• Right to Live in a Healthy Environment

• The right to life and to a healthy environment have been

recognized in intenational instruments relating to human
rights and judicial decisions throughout the world at national
,regional and international levels.

• Ravindra Gunewardena Kariyawasam Vs. Central EnvironmentalAuthority &

Others SC FR Application No. 141/2015*(chunnakkam case)
Page 52
"Article 12 (1) of the Constitution is read in the light of Article 27 (14)
of the Constitution, it vests in the citizens of Sri Lanka a fundamental
right to be free from unlawful, arbitrary or unreasonable executive or
administrative acts or omissions which cause or permit the causing of
pollution or degradation of the environment."
Page 53
I might add that, access to clean water is a necessity of life and is
inherent in Article 27 (2) (c) of the Constitution which declares that
the State must ensure "the realization by all citizens of an adequate
standard of living for themselves and their families, including
adequate food, clothing and housing, the continuous improvement of
living conditions and the full enjoyment of leisure and social and
cultural opportunities. ". It is public knowledge that the majority of
the people of our country have ready access to clean water which is
provided by the apparatus of the State. It is also undisputed that prior

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to the pollution of groundvwater in the Chunnakam area referred to

earlier, the residents of that area had clean water. Thus, the pollution
referred to earlier has deprived the residents of the Chunnakam area
of access to clean water. They have, thereby, been placed at a
significant disadvantage when compared to residents elsewhere in
the country."

II. . Right to Information on Environmental Issues

Bulankulama and Others Vs.Secretary. Ministry of ludustrial Developmient and Others (Eppawela
Case) S.C. Application 884/99 decided on 20th June 2000, (2000|3 Sri LR 43

Page 316
"Access to information on environment issues is of paramount importance. The provision of
public access to environmental information has, for instance, been a declared aim of the
European Commission's environmental policy for a number of years. Principle 10 of the Rio
Declaration calls for better citizen participation in environmental decision-making and rights
of access to environmental information, for they can help to ensure greater compliance by
States of international environmental standards through the accountability of their
governments. Principle 10 states as follows: "'Environmental issues are best handles with
the participation of all concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the environment that is
held by public authorities and the opportunity to participate in decision-making
processes.States shall facilitate and encourage public awareness and participation by
making information widely available. Effective access to judicial and addministrative
proceedings, including redress and remedy, shall be provided."

III. Right to Occupation

Bulankulama and Others Vs.Secretary, Ministry of Industrial Development and Others (Eppawala
Case) S.C. Application 884/99 decided on 2"d June 2000

Page 243
The petitioners being residents of Eppawela engaged in cultivation and owning lands there,
one of whom was the Viharadhipati of a temple, complained of infringement of their rights
under Articles 12(1), 14()(e) and 14(1 )(h) of the Constitution by reason of the proposed
agreement. They relied on the analysis of several professional experts and reports of the
National Academy-of Science and the National Science Foundation who were of the opinion
that the proposed agreement will not only be an environmeital disaster but an economic
disaster."
Page 261
"Aricle 14(1) (g) of the constitution states thať every citizen is entitled to the freedom to
engage by himself or in association with others in any lawful occupation, profession, trade,

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business or enterprise. Article 14(1) (h) states that every citizen is entitled to the freedom of
movement and of choosing his residence within Sri Lanka. The petitioners are citizens of
SriLanka and residents of the area called Eppawela in the Anuradhapura District in the North
Central Province. The first to fifth petitioners are land owners and/or paddy and dairy
farmers in the Eppawela area. The sixth petitioner is a teacher and the owner of an extent of
coconut land in the Eppawela area. The first to sixth petitioners state that they are in danger
of losing the whole or some portion of their lands and their means of livelihood if the
proposed mining project is implemented. The seventh petitioner is the Viharadhipathi of the
Galkanda Purana Viharaya where he has resided for over 35 years. He states that the
Viharaya and the paddy lands that sustain it are in danger of being destroyed if the
proposed mining project is implemented. The petitioners complain of an imminent
infringement of their fundamental rights guaranteed by Articles 14(1) (g) and 14(1) (h)."

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3. Sustainable Development

Definition

1. Bruntland Commission Report

Development that meets the needs of the present without compromising the
ability of future generations to meet their own needs
2. Principle 4 – Rio Declaration
In order to achieve sustainable Development Environmental Protection shall
constitute An integral part of the development process cannot be isolated from it
3. Rio Declaration – Principle 3
States the Need for the right to develop be fulfilled & also states that protection
of Environment is also a main human right .
4. Rio Declaration – Principle 14
Human beings are the centre of concern
They are entitled to a healthy and protective life in harmony with the nature.
5. Stockholm Declaration – Principle 11
Protection of Environment with Development
6. Stockholm Declaration – Principle 1
Man has a Fundamental Right to equality and a life in a quality environment
while bearing the responsibility to protect & improve the environment for the
present and future generations
7. UN Framework Convention on Climate Change (UNFCC) Article 3(4)
Parties have a right to and should promote Sustainable Development.
8. Desertification Convention – Article 5
To establish strategies and priorities within the framework to mitigate climate
changes

Features of Sustainable Development

1. There should be a balance between Development & environmental concerns
2. Development shouldn’t affect peoples right
3. It should be towards the welfare of the people.

DIFFERENCE between DEVELOPMENT and SUSTAINABLE DEVELOPMENT

➢ Development focuses on economic growth
➢ Sustainable Development takes social & environmental aspects of the Development
into consideration

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National Environment Act

In Sri Lankan Context , Sustainable Development Principle has been incorporated to
the National Environmental Act No.47 of 1980 Part 4
1. Gives the Central Environmental Authority Power to formulate schemes ,where the
natural resources of country be utilized .
SECTION 15 ( b)
2. One of the objectives of the scheme should be to encourage the prudent use &
conservation of land resources ,in order to prevent inbalance between needs of
nation & resources.
Case Law
Bulankulama and others vs Secretary Ministry of Industrial Development and others (
EPPAWALA CASE)

Held – that government has the right to use the resources but also highlighted the
significance of having policies that consider both environmental protection and
development .Also directed to follow the law of the country and the principles of
intergenerational equity.
Ravindra Gunewardena Kariyawasam V Central Environmental Authority & others (
CHUNNAKKAM CASE)

Page 51/ 52
There is a duty placed on Central Environmental Authority to ensure Sustainable
Development in granting approval for the activities.

Narmada Bachao Andolan V Union of India

Narmada river is the 5th largest river in India , to take use of the water a hydro power
project was suggested but it required 245 villages to be relocated because of submerging
but however at the end the greater benefit for the public outweighed individual rights.

Hungary V Slovakia
Slovakia initiated a power generation project to divert water from Danube River ,but
Hungary opposed saying that this will cause ecological damage while Slovakia said it will
benefit the people .
Weeramanthry J. Referred to the ancient traditional irrigation systems of Sri Lanka and
stated what the purpose of development should be.He emphasized the betterment of
the people and the concept of Trusteeship.
Also stated that development must align with reasonable environment protection to
preserve human rights and environment.

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Principles of Sustainable Development

➢ Public trust doctrine
Eppawala case
“ certain resources like air,water,are of great importance to the society and should not be
subjected to private ownership.”

➢ Environment Impact Assessment

Is crucial for Sustainable Development
This ensures the potential environmental impact of development projects are mitigated .
This aligns with the precautionary principle which emphasizes taking preventive measures
to stop potential environmental harm.

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4. Public Trust Doctrine

➢ Meaning of Public Trust Doctrine

• Based on the principle that certain resources like land , air ,sea water ,fauna,
flora have a qgreat importance to the people as a whole
• Those Resources should be freely available to anyone irrespective of the
status of life .
• Public Trust Doctrine is a restrictions on the rights of ownership of public
lands or public property.

➢ Concept of Sovereignty as in Article 3,4 & obligations imposed on the people and
the government as the guardians

1. Artcle 3 – Sovereignty is in the people and is inalienable

2. Article 4 – Government is comprised of legislative,executive and judiciary
3. legislative ,executive ,judicial powers of people are exercised through persons and
institutions entrusted / established according to the law.
4. Artcle 3,4 read with Article 12,27 and 28 ensure that people are sovereign and rule of
law is assured to the public / people.
5. Therefore people in authority can’t misuse their powers be it the Police officer ,Grama
sevaka or any lowest rank or the President as the highest in the order.
6. Court as guardians have the authority to take care of the people and look after them
and the resources of the public.
7. This Doctrine has been practiced from ancient times in Sri Lanka
8. Our Ancient Rulers were committed to protect and preserve the natural resources.

➢ Article 12,27,28

1. Article 12
• Right to equality provision
• All people are equal before the law and are entitled to equal protection of the
law.
• This article ensures protection against arbitrary actions of people in authority
• Article 3,4, read with Article 12, 27,28 ensures that people are sovereign
• Therefore , No Person in authority is allowed to misuse their power by any
means

➢ How power should be used

1. Power must be used strictly for the larger benefit of the people,the long term
sustainable development & in accordance with the rule of law .

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2. Powers vested in the State ,Public officers and authorities are not absolute Powers
and are held in trust for the people /and shall be used for the public benefit and not
for improper purposes.

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Case Law

Bulankulama and others vs Secretary Ministry of Industrial Development and others (

EPPAWALA CASE)
1. Government was intending to enter into an agreement for exploring and mining
phosphate in Eppawala
2. The agreement granted right to the foreign company to
Search and explore the phosphate and conduct tests in that area.

Mine and develop phosphate deposit in the exploration area.

3. But the project proponent didn’t provide an EIA and it was not approved by project
approving agencies and also the provisions of National Environmental Authority and
Mines and Minerals Act has been disregarded
4. Held - The Government was intending to give away the phosphate deposit for a nominal
sum of money which belongs to the present & future generations of the country .
Sugathapala Mendis and others Vs Chandrika Bandaranaike Kumarathunge and others (
WATERS EDGE CASE )

1. Transfer of a Land to a private golf course to a price less than the true value of the land.
2. Held – Land was arbitrarily alienated in violations of the provisions of the constitution.
3. Thilakawardena J. stated that Mrs. Bandaranaike has failed to further the public interest
and has betrayed the trust bestowed upon her by the people
4. Lands acquired for public purposes cannot be given to private benefit.

Ravindra Gunewardena Kariyawasam V Central Environmental Authority & others (

CHUNNAKKAM CASE)
PAGE 59
1. Failure on Central Environmental Authority( CEA ) and BOI to perform their duties under
National Environmental Act and to prevent the respondent from operating the thermal
power station .
That caused contamination of groundwater and soil in vicinity in that area which was
unreasonable and arbitrary
2. CEA and BOI have breached Public trust reposed in them FR violation of the Chunnakkam
residents under Article 12 (1) of the constitution was declared.
Heather Mundy Vs Central Environmental Authority
Mark Fernando J. described the writ jurisdiction under Article 140 in the context of our
constitutional principles and provisions impugned these orders constitutes one of the
principles against excess and abuse of executive power, mandating the judiciary to defend
the sovereignty of the people mentioned in the Article 3 against infringement or
encroachment by executive .

MC Mehta V Kamalnath & others

1. This case involved the grant of state land on lease for the construction of a Hotel on bank
of a river
2. It was further held that granting the state land to a private ownership for commercial
purposes violated the public trust.
3. Court held – interpreted article 3 and expressed the democratic values ,that people are
the ultimate sovereigns ,power holders of government are temporary.

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4. So such power can only be exercised to further the public interest

Conclusion

➢ Individuals responsible with upholding the constitution should not violate the
Public Trust Doctrine.
➢ This is a basic need to uphold then sovereignty of the people
➢ Entities created by the Constitution & the power vested upon them should only be
used for the benefit of the people.

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5. Public Interest Litigation

Introduction
Public Interset Litigation is a unique legal mechanism ,enabling individuals /organizations to
bring forth legal actions on behalf of the public benefit of the society
History
It emerged in USA in 1954 in Brown Vs Board of Education
India also adopted this in early 1976 when its judicial activism was emerged.
Instead of society focusing on resolving private disputes ,the supreme court & High court
were encouraged to address public issue, leading to the rise of Public Interest Litigation
Objective of Public Interset Litigation
✓ Encompasses cases related to Environment Law ,although it is used for wide
range of public interest issues.
✓ Unlike traditional litigation,Public Interest Litigation is not strictly adversarial
but more flexible
✓ Public Interest cases are PROSPECTIVE
Which means that they aim to prevent future harm or address issues rather
than seeking compensation for the petitioner.
-Relief is corrective in nature
-Focuses on rectifying the situation for the benefit of the society.
Significance
▪ A requirement for continuing judicial involvement .
▪ Since the relief is sought ,It challenges the government policies ,impact of Public
Interest Litigation can extend beyond the parameters of the case , resulting in
changes that benefits the society at large
▪ Right to bring a legal action ,has played a crucial role in facilitating Public Interest
Litigation.
▪ Previously individuals had to prove specific injuries distinct from others .
▪ Supreme court relaxed the traditional standing barriers & broadened the concept of
an “aggrieved person “ to encourage Public Interest Litigation.
▪ This allowed public spirited individuals such as lawyers to bring forth petitions on
behalf of others who are unable to approach the court due to various challenges .
▪ Previously only individuals with a direct legal right could afford standing but this has
gradually been relaxed to those who are having
i. sufficient interest
ii. Public interest
iii. Legitimate interest
iv. Some interest
v. Representative interest

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Case law

✓ Environmental Foundation Ltd. V Minister of Urban Development &

others ( Galle Face )
✓ Geethani Wijesinghe & EFL V Patali Champika Ranawaka ( Air
Pollution )
✓ Public Law Foundation V Central Environment Authority ( Southern
Expressway )
These cases highlited the growing recognition of of Public
Interest Litigation as an effective mean to address public interest through
litigation.

Hussainara Khatoon V Home Secretary of the state of Bihar

A public spirited lawyer was granted standing to file a petition on behalf of 18
prisoners who had been awaiting trial for periods in Bihar.
This Petition revealed the situation of over 80000prisoners who have been
unjustly in jails beyond their original duration
Case led to significant reforms in criminal justice systems.

Rural Litigation & Entitlement Kendra Dehradun V Uttar Pradesh

Public Interest Litigation led to the closure of limestone quarries in Debradum
region
MC Mehta V Union of India ( Shriram Gas Leak )& ( Ganges Pollution case )
Compelled government agencies to take action against pollution protecting rivers
& public health.
Subash Kumar V State of Bihar
The Supreme Court reprimanded a petitioner for attempting to use Public Interest
Litigation to advance personal interests .Supreme court also highlighted the true
meaning of the concept

Locus Standi and Public Interest Litigation

• Public Interest Litigation has relaxed the locus satndi

• Anyone who is interested in appearing before the courts in the public interest can
make a standing and file a case .
Bulankulama Secretary V Ministry of Industrial Development ( Eppawala Case )
Amarasinghe J. stated that This is an instance where the rights that are violated
are being linked to the collective rights of Sri Lankan citizens
Because in Eppawala incident community right have been violated, so everyone in
this instance becomes a person whose rights are violated
SO them or their attorney can file a case.
• Locus Standi rule in Article 126 of the constitution becomes expanded .
• The courts recognizes the violation of collective rights
Environmental Foundation Limited V Urban Development Authority ( Galle Face
Green case )

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Petitioner is a non profit organization which ensures that the public interest is
protected in the manner of preserving environment . An organization complained
over state handing over Galle Face Green to a private company
Sarath .N.De Silva J stated that the Petitioner ,a non -profit organization working
for public interest has the capacity to appear before the court .

Summary
❖ Public Interest Litigation (PIL) has emerged as a powerful legal tool in India
and other countries
❖ Enabling individuals & organizations to champion public problems through
the expansion of standing rules.
❖ Public Interest has overcome traditional barriers leading to

significant reforms
protecting individual rights
holding public officials accountable

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6. POLLUTER PAYS PRINCIPLE

➢ DEFINITION
Any person who causes polution should be made liable to pay for the damage
caused.

➢ RESPONSIBILITIES OF THE POLLUTER

1. In many instances the costs of the pollution are directly or indirectly borne by the
state or the public rather than the polluter.
2. This principle tries to ensure that such costs are ultimately borne by the polluter.
3. Rio Declaration – Principle 16
“National Authorities should promote the international affect of Environment
costs and take into account that the polluter should bear the cost of pollution
with due regard to the public interst & without distorting .”

Case Law

Vellore Citizens Welfare Forum V Union of India

➢ In this case several tanneries have been polluting the environment for a long
peiod of time ,
➢ The court observed that Poluter pays principle means the absolute liability
for harming the environment extents not only to compensate the victims of
the pollution but the cost of restoring the degradation
➢ The polluter is liable to pay the costs incurred individuals who suffered from
pollution & as well liable to reverse the damaged ecology.
➢ Company was ordered to pay compensation as well as to pay for the past
pollution it generated .
Eppawala case
The environment pollution resulting from constructing of a factory for the production
of phosphoric & sulphiuric acid at Trincomalee.which is massive and irreversible.
Petitioners drew attention to the inadequency of the protection offered by the
agreement with regard to repairment and restoration of the environment damage.
Mc Mehta V Kamalnath & others
The course of the river was diverted to save the motel belonging to the respondent
from floods .
Was ordered to pay costs of pollution
Ravindra Gunawardena Kariyawasam V central Environment Authority &
others
Page 63 : Rio Principle 16
“ National authorities should promote environment costs taking into account the
approach ,that the polluter should bear the cost of pollution with regard to public
interest & without distorting the nature.
S Jaganath V Union of India
It was found that shrimp culture in & around certain lakes was causing salinity of the
soil and the drinking water

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Supreme court decided to close the shrimp culture industries ,to compensate the
affected individuals and also to contribute for the damage .

SUMMARY

Poluter Pays Principle is a vital component of sustainable development.

Aiming to hold those responsible accountable .
Through this the burden of environment damage & restoration is shifted from
the state, public to the polluter

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7. Precautionary principle
Introduction
based on the approach that it is better to prevent Environment degradation in the first
place rather than allow it to occur and then try to repair the damage
Article 3 (3) of the United Nations Framework Convention on Climate Change (UNFCCC)
The parties should take precautionary measures to anticipate prevent or minimise the
causes of climate change and mitigate its adverse effects where there are threats of serious
irreversible damage lack of full scientific certainity should not be used as a reason for
postponding such measures taking into account that policies and measures to deal with
climate change should be cost effective so as to ensure global benefits at the lowest
possible cost
Principle 15 of Rio Declaration
In order to protect environment the precautionary approach shall be widely applied by
States according to their capabilities .
National Environment Act number 47 of 1980
contains provisions incoperating the said principle in Environment Impact assessment and
NEA provisions also require the developer of a prescribed project to take into consideration
the harm which could be caused as result of the implementation of the project at the very
initial stage of the project.
Case Law

New Zealand V. France - judgement of the ICJ (1996) Vol. 3 (1&2) SAELR
This case is in relation to a dispute between New Zealand and France over France's intention to
conduct underground nuclear tests in the South Pacific.

Though New Zealand objected to the testing, the application was dismissed. However, Justice
Weeramantry and another Judge gave a dissenting judgment explaining the environmental
impacts of nuclear testing.

Vellore Citizens Welfare Forum v Union of India

the Precautionary Principle suggests that where there is an identifiable risk or serious and
irreversible harm, including for example, extinction of species, wide spread toxic pollution

The Supreme Court of India observed that, ecological processes, it may be appropriate to place
the burden of proof on the person or entity proposing the activity that is potentially harmful to
the environment".
In this case the Supreme Court focused on the balancing of competing interests of development
and environment.

It observed that 'though the leather industry is of vital importance to the country as it generates
foreign exchange and provides employment avenues, it has no right to destroy the ecology and
pose a health hazard."

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The Court further pointed out that "the traditional concept that development and ecology are
opposed to each other is no longer acceptable".
M.C. Mehta v Union of India AIR 1997 SC 734
An action was filed against the coke/coal industries situated close to Taj Mahal causing damage to
Taj Mahal. Expert studies proved that acid rain caused by the industries caused atmospheric
pollution and had a corroding effect on the gleaming white marble. It was stated that white
marble had yellowed and blackened in certain places. The Court stated that the atmospheric
pollution in Taj Trapezium Zone has to be eliminated at any cost and held that the industries
identified as potential polluters, had to change to natural gas as industrial fuel and those who
were not in a position to obtain gas connections should stop functioning in the TTZ. The Supreme
Court also held that apart from being cultural heritage, it is an industry itself. It is a source of
revenue to the country as millions of tourists visit this tourist people attraction every year.

Bulankulama v. Secretary Ministry of Industrial development and others (2000) 3 S.L.R.

243
It was alleged, that under the agreement, a factory for the production of Phosphoric acid and
Sulphuric acid which are highly polluting Substances, would be constructed at Trincomalee using
450-acre land next to Trincomalee bay. The environment pollution resulting from
The said project will be massive and irreversible and will render the affected area unusable in the
near future.
Waste products from large scale mining of phosphate as envisaged by the project include
phosphor- gypsum and other radioactive substances.

Mining operation will leave behind large pits and gullies which will provide a breeding ground for
mosquitoes and lead to the spread of diseases.

The National Academy of Science of Sri Lanka stated that mountains of phosphate-gypsum will
accumulate polluting the environment

The Petitioners drew attention to the inadequacy of the protection offered by the proposed
agreement with regard to the repair and restoration of the environmental damage.

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8. Inter Generational Equity

➢ Meaning

1. While the present generation is entitled to exploit the limited natural resources
of the earth,for its sustenance and survival.
2. The future generations also have a corresponding right to use the earth’s natural
resources for their sustenance.
➢ Rules

✓ Principle 1 Stockholm Declaration

-Man has the fundamental right to freedom and adequate conditions of life
in a environment that permits a life of well being at the same time has a
solemn responsibility to protect & improve the environment for future
generations.

✓ Principle 2 Stockholm Declaration

The natural resources of the earth must be safeguarded for the benefit of
present & future generations through careful planning & appropriate
management.

✓ Section 17 of National Environment Act

Central Environment Authority shall recommend the minister
“The basic policy of the management & conservation of the country’s natural
resources .
In order to obtain the optimum benefits from it and preserve the same for
future generations.
✓ Case law
Juan Antonio oposa and others Vs Hon. Fulgento .S. Factoran and others
Plaintiff are minors and seeking the court to cancel all existing timber license and
not to issue any new license .on behalf of the generations yet to be born
And have a right for ourselves but also a duty to defend the rights of the future
generation.The court decided that a timber license is an instrument by which the
state regulates the utilization and disposition of forest resource A timber license is
only a privilege which can be validly withdrawn whenever.
Environment Foundation Limited V Urban development authority of Sri
Lanka and others .E.A.P edirisinghe and others SC
The urban authority of Sri Lanka was intending to give on lease the Galle Face
green to EAP & co to turn it into a mega entertainment & leisure park.Court
emphasized the importance of Galle Face Green to present & future generations
& stated the agreement was unlawful & let it be maintained as a public property.
Eppawala case
Petitioner – Env pollution resulting fromthis is irreversible & massive Court - Amarasinghe
J. Non renewable resources of earth must be employed in a way to guard against the
future exhaustion & ensure the benefits from such employment are shared by all
humankind.

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9. Absolute Liability

There is a difference between absolute liability and strict liability.

The Supreme Court of India formulated the doctrine of absolute liability for harm caused by
industry engaged in hazardous and dangerous activities.
In the case of M.C. Metha v Union of India AIR 1987 SC 982, 1028 1086, (oleum gas leak
case),
The Petitioner sought the closure of a chlorine plant and the relocation of Shriram Foods
and Fertilizers Industries situated in a densely populated area. following the disastrous
consequences of a leakage of oleum gas from a plant. As a result, several suffered injuries.
Later the factory was closed. This resulted 4000 employees losing their jobs.The Supreme
Court took this fact into consideration and ordered the factory to be re-started with specific
conditions including periodic health checks of the workers etc.
Later a writ application was filed (MC Metha Vs. Shriram Food & Union of India) and it was
referred to a larger bench as issues relating to fundamental rights and compensation were
to be discussed.
The court had to determine whether Shriram as a private company could fall with the
definition of state. The court did not rule that it was state for the purpose of Article 21.
However, it held that a corporation owes absolute and non- delegable duty to the
community to ensure that no harm results to anyone on account of the hazardous or
inherently dangerous nature of the activity which it has undertaken.The court stated that
the enterprise should provide the highest standards of safety and if any harm results, it
should be absolutely liable.
The court stated that the principle of strict liability evolved in England more than a century
ago in Rylands v Fletcher and was diluted to a large extent by adding exceptions to the
principle examples for exceptions are as follows,
1. Act of God
2. default of the plaintiff
3. consent of the plaintiff
4. independent act of third party
6. statutory authority.
The court held that the enterprise is strictly and absolutely liable to compensate all those who are
affected by the accident and such liability is not subject to any of the exceptions in the Ryland v
Flecher case. Where an enterprise is engaged in a hazardous or inherently dangerous activity and
harm results to anyone for ex. Escape of toxic gas the enterprise is strictly and absolutely liable to
compensate to all those who are affected, which has no defences (no fault).

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10. Environmental Protection License (EPL)

Vision to regulate the discharge ,deposit,emission of waste to the environment by an

environmental protection license.

Goal /mission to ensure the discharge/deposit /emission of waste by industrial

/commercial or other is done according to the standards.

Section 23A of part 4 (A) of The same act says that the minister may determine the
prescribed activities which requires an environmental protection license before the
project commence.

➢ The framework of Environmental Protection License (EPL) Procedure is set out in

the National Environment Act and the National Environmental regulations

➢ Central Environmental Authority shall issue the license IF

1. The license will not be used against the provisions of the Act
2. No irreversible hazard to people & environment will result from the
acts authorized by the license.
3. The applicant has taken adequate steps for Environmental Protection
according to the law.
➢ Central Environmental Authority may cancel the license IF
1. The person violates any terms ,standards ,conditions
2. The receiving Environment has been altered or changed due to natural
or other factors.
3. The discharge ,deposit or emission of waste into environment under
environment protection license could adversely affect.
➢ Regulation 10 - can explain why such order should not be issued
➢ Section 23 DD – A person aggrieved by the refusal can appeal to the Secretary of the
Ministry of Environment within 30 days , where his decision will be the final
➢ Section 26 – Central Environmental Authority ( CEA ) has delegated power to local
authorities to issue Environmental Protection License in case of small scale industries

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Case Law

Appeal under section 23E of NEA by G.L.M Kamal Fernando

CEA has imposed 2 conditions on the construction belong to the appellant that it
should be 200m away from the 3rd respondent’s residence and also the smoke from
kiln be disposed by a chimney 30m high however the appellant was unable to comply
with the 1st .
CEA had no general guideline in regard to distance .
Secretary of the Environment Ministry held that the conditions requiring him to
maintain 200m was arbitrary & had no technical basis as the conditions imposed by
the authority should be reasonable ,not arbitrary.

Jayawardena Vs Akmeemana pradeshiya sabha & 4 others

The petitioner went to CEA & Akmeemana Pradeshiya Sabha to set up a metal crusher
CEA granted the license and & Akmeemana Pradeshiya Sabha issued the license after
an inspection.
2 days later protest from nearby residence requested him to stop the project.
It was found that the petitioner hadn’t obtained a trade license which he was oblidged
to do so.After another inspection it was decided that the EPL shouldn’t be issued
because the location was unsuitable.
Petitioner filed actions for Fundamental Rights violation under Article 12 ,14 (1) g

Held –
1. The pradeshiya Sabha was exercising the powers of CEA under section 26 of
the National Environment Act
2. The petitioner has failed to comply with the conditions causing air & noise
pollution So the pradeshiya Sabha was entitled to cancel the licnese .
3. Petitioners occupation was unlawful in terms of Section 23A read with Section
23B
4. Article 14(1) g not violated

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10. Environment Impact Assessment (EIA )

1. Environment Impact Assessment report is defined under Section 33 of the NEA

2. This is simply a written analysis of predicted environment impact.
3. This contains
• An environment cost benefit analysis
• Description of the project including the avoidable &unavoidable adverse
impacts
• A description of alternatives to the activity together with the reasons why
other alternatives are rejected
• Irreversible, reversible results from resources
4. Prior to the commencement of the project Environment Impact Asessment
examines how the project might cause harm to people , their homeland
,livelihood
5. After the assessment EIA identifies measures to minimize problems
6. EIA process was introduced to Sri Lanka by
COASTAL CONSERVATION ACT NO 57 OF 1981
Part 3 of the act contains the provisions regarding EIA which permits a
procedure.

➢ INTERNATIONAL CONVENTIONS

Principle 17 of Rio Declaration

EIA as a national instrument shall be undertaken for proposed activities that are
likely to have an adverse impact on the Environment

➢ EIA PROVISIONS OF NATIONAL ENVIRONMENT ACT NO ;56 ,1998

1. Part 4C – Approval of Projects

National Environmental Regulations
2. Section 23Y and 23Z
Empowers the minister to gazette a list of project approving agencies ( PAAs ) and
Prescribed Projects

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Project Approving Agencies(PAAs ) Prescribed Projects

1. Central Environmental Authority 1. Construction of hotels exceeding 99

2. Urban Development authority rooms & 40 hectares
3. Ceylon Tourist Board 2. Development of Industrial estates
and parks

3. This act applies to both state & private sector projects

Project approval may be based on
Initial Environment Assessment or Initial Environment Examination

these examinations are carried out for less

harmful projects but with significant impact.

➢ PUBLIC PARTICIPATION

• This is an integral part of the EIA Process

• NEA requires EIA Report to be available to the public and also to send their
( public )comments
• PAAs must publish notices in gazettes & newspapers in multiple languages .
• PAAs forwards the public comments to the project proponent to respond.
Ex : Upper Kotmale Hydro Power Project
Colombo – Katunayake Expressway

➢ PUBLIC HEARINGS

• Held in public interest

• Not mandatory
• The grant of Project Approval( PA) lies with Central Environment Authority
and Project Approving Agencies (PAAs)
• PAA may grant or refuse with reasons provided
• If the approval is granted ,it is published in gazetts and newspapers.
• Ex : Upper Kotmale Hydro Power Project Public Hearing

➢ APPEALS
• Section 23 DD OF THE NEA
If PAAs refuse the approval for the project, the aggrieved party can appeal
to the secretary ,Environment ministry and that decision will be conclusive .

➢ ALTERATIONS
• Section 23 EE NEA

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If the project is abondened the project proponent must inform the PAA and
in such case a fresh approval may be required .

• So this EIA process is guided by the NEA

Ensures that potential ENV impacts of development activities are assessed, mitigated
,and enhanced through

✓ Public Paricipation
✓ Project Approval Procedures
✓ Opportunity to appeal
✓ Project Alterations

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The procedure for the approval of projects (Summary)

PROJECT PROPONET

PREMINIARY INFORMATION TO THE PAA

SCOPING
(Terms of reference will be laid down to find out whether the project proponent will have to submit an IEE or
EIA)

SUBMISSION OF THE EIA BY THE PROJECT PROPONENT TO THE PAA . PAA PUBLISHES A NOTICE OF THE TIME
AND PLACE OF INSPECTION OF THE EIA IN THE GAZETTE AND IN THE NEWSPAPER IN ALL THREE LANGUAGES

PUBLIC COMMENTS WITHIN 30 DAYS

PUBLIC HEARING IF NECESSARY

COMMENTS SENT BACK TO THE PROJECT PROPONENT

FINAL SUBMISSION OF EIA

THE PROJECT APPROVING AGENCY MAY

(a). APPROVE WITH CONDITIONS, OR (b) REFUSE APPROVAL

APPROVAL TO BE PUBLISHED IN GAZETTE AND NEWSPAPERS

APPEAL BY THE AGGRIEVED PERSONS (PROJECT PROPONENT) TO THE SECRETARY OF MINISTRY IN CHARGE OF
ENVIRONMENT WITHIN 30 DAYS OF THE DECISION OF THE PAA

THE PROJECT PROPONENT SHALL INFORM OF ANY ALTERATION OR ABANDONMENT OF THE PROJECT TO THE
PAA AND SHALL OBTAIN FRESH APPROVAL IF NECESSARY

THE PROJECT APPROVING AGENCY SHALL MONITOR THE PROJECT

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11. Public Nuisance

Definiton – unreasonably interference with the right of the general public.

Distinction between Public Nuisance and Private Nuisance

Public Private
Deals with the interference of a Deals with the interference of
public right ,offences which causes another person’s right .
interference ,inconvenience
damage or danger to the public at
large

Crime & gives rise to criminal Civil liability

liability
One of the ingredients of a crime is
mens rea :intention to commit
crime
However under the law ,even
without an intention if an act or
omission causes injury, damage to
the public. A person who causes any
act which adversely affect the rights
of the public can be held liable.

➢ Penal code – section 261

A person is guilty of Public Nuisance when he does any act or illegal omission
which Causes Common injury , danger,annoyance to public,people who dwell
or occupy property.
Or
Which must cause injury/obstruction/danger or annoyance to persons who
is using their rights.
Public Nuisance can never be excused saying it causes some advantage to the
wrong doer of a group of persons.
➢ Further
• Public Nuisance is a legal concept proven to be effective in addressing
environment pollution & degradation caused by unauthorized industries &
unlawful human activities .

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• By recogniiiiizing it as a crime it establishes criminal liability aiming to

punish the responsible party & make them take measures to prevent further
harm.
• Protects public health ,safety ,environment from adverse effects of human
activities
• Whether a nuisance is public or not depends on whether it relates to an
individual or the community at large
• A public right doesn’t depend on the number of individuals who enjoys it
,rather than a right enjoyed by the members of public,it includes any act or
omission affect the public
Ex; SARAM V SENEVIRATHNE
; NAIR V COSTA

Case Law

M.M Khalid and 3 others Vs Chairman of Sri Jayawardenapura Kotte urban council
Action was brought under section 98 of the criminal procedure code against the
chairman of thr Sri Jayawardenapura Kotte urban council,claiming the council
was dumping garbage in that said area causing public nuisance

The Urban Development Authority said that the site used for dumping was the
only option
Also they were gradually implementing hygenic methods and there was no
imminent danger to the health & well being of the parties

Court rejected the justifications and stated that Public Nuisance cannot be excused
under section 261 of the penal code. UDA actions has constituted Public Nuisance
therefore issued a conditional order against UD
& also to take necessary steps to abate the nuisance within a specific time.
Ratlam Municipal Council V Vardhichand
The Magistrate gave an order against the municipal council stating that it was
guilty of breach of duty & public nuisance & had not carried out its statutory
obligations to prevent public nuisance caused by lack of public sanitation & the
discharge of waste from an alchohol plant into a public street.
Singlanka Standard Chemmicals Ltd V T.A Sirisena & others
Facts – A revisionary appeal was made to the Avissawella High Court halting the
operation of respondent petitioners chemical factory . which manufactured
Aluminium Sulphate.
Magistrate under chapter 9 of the Criminal Procedure Code ordered the closure
of the factory
Magistrate was of the view that under section 98 only way to stop public nuisance
is to close the factory for a limited period.
Saram V Senevirathne
A clear distinction was drawn between public and private nuisance .The accused
was the proprietor of an oil store where coopering was carried on ,The noise

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created by the constant hammering on the barrels affected the whole

neighbourhood.
The court observed that “ it is not necessary to prove that the public at large
should be affected by the nuisance and the proof of that community or
neighbourhood is so affected will be sufficient
Nair V Costa
an action was brought against the accused under section 283 of the Penal Code for
causing public nuisance for failing to take necessary precautions to prevent his dog
barking continuously at night, and thereby causing disturbance and annoyance to
the people in the neighbourhood.
The Magistrate convicted the accused ,but in appeal Dalton J stated that the only
question for argument was whether the evidence disclosed any act or illegal
omission on the part of the appellant which caused annoyance to the public who
dwell in the vicinity
And that there is no evidence to show that any person except the Magistrate who
convicted the accused ,The conviction was set aside.

➢ Abatment to Public Nuisance and Legal Procedure

1. Code of criminal Procedure Act No 15 of 1979 empowers magistrate to

take actions for removal or abatement of Public Nuisance

2. Chapter 9 – sets the legal framework for dealing with Public Nuisance ,
empowers the Magistrate to Abate Public Nuisance

3. Section 98 – A Magistrate can make a conditional order for removal of any

unlawful obstruction or nuisance
The conditional order specifies the time frame for rectificating the situation
too.

4. Section 185 of the Penal Code - If the people fails to comply with the
conditional order they are liable to penalties prescribed in this section.

5. If the person appears before a Magistrate and seeks to have the order set
aside or modified ,Magistrate shall consider the evidence provided.

6. Section 99.- Service of notification of order

given under this Chapter shall if practicable be

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(1) The order and any other order or notice made served on the person
against whom it is made or to
whom it is made or to whom it is to be given in the manner herein provided
for service of a summon
(2) If such order cannot be so served a copy thereof shall be posted up at
such place or places as the
court may consider fittest for conveying the information to such person.

7. Section 99.
(1) The order and any other order or notice made /given under this Chapter
shall if practicable be served on the person against whom it is made or to
whom is to be given in it the manner herein provided for service of a
summons.
(2) If such order cannot be so served a copy thereof shall be posted up at
such place or places as the court may consider fittest for conveying the
information to such person.

8. Section 100
(1) The person against whom such order is made shall within the time
specified therein-
(a) perform the act directed thereby;
(b) act under subsection (2) of section 98.
Consequence of failing to do so:-

2) lf such person does not perform such act or appear and to move to have
the order set aside or
modified as required by subsection (1) shall be liable to the Penalty
prescribed in that behalf in section 185 of the Penal Code and the order shall
be made absolute.
Provided that if such person be a corporate body every director thereof shall be
liable to the penalty
hereinbefore prescribed, unless such director proves that such fault was
not Occasioned by an act of his or by any omission on his part.
9. Section 101 of Criminal Procedure Code – If it is determined that the order is
not reasonable it may be modified accordingly

10. Section 102 – Once the order becomes absolute ,the person is notified to
perform the directed act within a specific time..

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11. Section 103 – Failure to comply with the orders empowers the magistrate to
take necessary actions .

12. Injunction pending inquiry.

Section 104.
(1) If the Magistrate making an Order under section98 considers that immediate
measures should be taken to prevent imminent danger or injury of a serious kind
to the public, he may issue such an injunction to the person against whom the
order was made as is required to obviate or to prevent such danger or injury.
13. Section 105.
Magistrate may prohibit continuance of public nuisances
(1) A Magistrate may order any person not to repeat or continue a public
nuisance as defined in the Penal Code or any special or local law.
Temporary orders in urgent cases of nuisance
14. Section 106
(1) In cases where in the opinion of the Magistrate immediate prevention or
speedy remedy is desirable ,the magistrate may by a written order stating the
material facts of the case and served in manner provided by section 99,direct
any person to abstain from a certain act or to take certain order with certain
property in his possession or under his management.
If the Magistrate considers that such direction is likely to prevent obstruction
,annoyance ,injury ,risk or annoyance ,risk for any person lawfully employed or
danger to human life ,health or safety or a riot or an affray.
(2) An order under subsection (1) may in cases of emergency or in cases where
the circumstances do not admit of the serving in due time or a notice upon the
persons against whom the order is directed be made ex parte.

(3) An order under subsection (1) may be directed to a particular person or to the
public generally when frequenting or visiting a particular place, and in the latter
case a copy of the order shall be posted up as provided by subsection (2) of
section 99.

(4) Any Magistrate may rescind or alter any order made under subsection (1) by
himself or by his predecessor in office.
(5) An order under this section shall not remain in force for more than fourteen
days from making thereof unless, in cases of danger to human life, health or
safety or a likelihood of a riot or an affray, the Minister by notification in the
Gazette otherwise directs.

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Magistrate Power
Under the above said provisions the Magistrate has been conferred power to
remove or abate public nuisance.

A Magistrate is required to consider the report or other information received by him

and to take the relevant evidence and make a conditional order and the appropriate
orders.

Under the said provisions, a Magistrate is required to make a conditional order

where he receives a report or information and taking evidence if necessary regarding
a nuisance.

Neil Fernando V. Ranjith Cooray and Others 1999 (1) Sri.L.R. 281,
A report was filed in the Magistrate's Court against the appellant who was a funeral
undertaker who caused nuisance by channeling impure and contaminated water
utilized for the purpose of washing cadavers in the process of embalming and from
permitting noxious vapours of formalin to emanate into the atmosphere thus
contaminating the air which was detrimental to the health of the complainants and
others.
The Magistrate after considering the report, made a conditional order permitting the
appellant to continue with the business subject to the conditions that
The respondent appellant should ensure that contaminated water in washing dead
bodies and cadavers should not be permitted to flow on to the drain on the main road,
and the parts removed from the cadavers in the process of embalming should be
systematically disposed of.
The appellant made an appeal against the order to the High Court in terms of the 320
(1) of the Code of Criminal Procedure Act read with section 4 of the High Court of the
Provinces Special Provisions Act No 19 of 1990. The High Court Judge acting in revision
set aside the order of the Magistrate. An appeal was made to the
Supreme Court from the said order. The question for argument was whether one can
appeal to the Supreme Court without a final order of a lower Court.
The Court took into consideration the relevant sections of the Code of Criminal
Procedure Act and was of the view that an order made under section 101 of the Code is
an appealable order which attracted the provisions of section 320 of the Code.
The Court also stated that an order made under section 109 is an appealable order. The
Magistrate set aside the conditional order after taking into consideration the objections
taken by the appellant and the contents of the affidavit produced.
The Magistrate relied on the provisions of section 415 of the Code which authorizes the
learned Magistrate to have acted upon the said affidavit.
The Supreme Court set aside the Order made by the High Court stating that the Court
had erred in taking into consideration extraneous matters and affirmed the order of the
Magistrate.
The question for argument was whether one can appeal to the Supreme Court without
a final order of a lower Court.
Elal Jayantha V. Officer-In-charge, Police Station, Panadura 1986 (1) Sr.L. R 334

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It deals with the procedure which should be followed in making order under section
98(1) of the Code. The Police filed a report in the Magistrate's Court alleging that the
appellant was committing nuisance to the neighbours by working a metal crushing
machine which emitted deafening noise and dust carrying particles of metal thus
creating a health hazard. The matter was fixed for inquiry and both parties appeared.
After hearing evidence of both parties, the Magistrate directed himself to decide
whether the respondent created a public nuisance, and whether his acts were injurious
to the health or the physical comfort of the community and after considering the
materials before him concluded that the respondent had committed a public nuisance.
There was also evidence that the machine was operated without obtaining a license
from the local authority. The Magistrate made order against the respondent. He
appealed to the Court of Appeal against this order. The Court of Appeal stated that
there was a defect in the proceedings adopted by the Magistrate. Section 98 (1) of the
Code reads as follows;
"Whenever a Magistrate considers on receiving a report or other information and on
taking such evidence as he thinks fit that-any trade or occupation or the keeping of any
goods or merchandise should by reason of its being injurious to health or physical
comfort of community be suppressed or removed or prohibited, or..... Such Magistrate
may make a conditional order requiring the person causing such obstruction or nuisance
to remove such obstruction or nuisance".
This is confirmed by section 98(2) which states as follows:-

(2) Any person against whom a conditional order has been made under
subsection (1) may appear before the Magistrate making that order or any other
Magistrate of that Court before the expiration of the time fixed by that order
and move to have the order set aside or modified in manner hereinafter
provided.
The Court was of the view that the Magistrate had not followed the said procedure and
took into consideration whether due to this irregularity of procedure, the proceedings
should be allowed to stand. As there is overwhelming evidence that a public nuisance
has been created and the irregularity has not occasioned, a failure of justice-section 436
of the Code, the Magistrate's order is upheld. The Court also issued a statement of
warning as follows.

"This ruling is given only on the facts and circumstances of this particular case, and
should not be considered as a license to Magistrates to boldly disregard the procedural
provisions of the Code of Criminal Procedure Act."

➢ Conflict between the provisions of the National Environment Act and and the
provisions of Chapter ix of the Code of Criminal Procedure Act

Premasiri Weerasekara V Keagnam Enterprises & others

Case against Keagnam Enterprise was filed in terms of section 98 ( 1 ) of the code in
Magistrate Court for carrying out blasting of rocks with explosives alleging they have
caused public nuisance .

Magistrate requested to deposit 5 lakhs and told not to proceed with the quarring

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Respondent deposited money but objected to the order saying that Magistrate doesn’t
have jurisdiction as an Environment Protection License for the Act had been obtained (
23 A NEA)

Magistrate overruled the objection ,that a license obtained under NEA doesn’t deny
Magistrate court jurisdiction in terms of Public Nuisance

Respondent went to the high court and the high court quashed the Magistrates order

Petitioner appealed against the High Court order saying The High Court has failed to
appreciate if a person with a license doesn’t comply with the license then such person
acts as he has no license .
License is not something to commit Public Nuisance so Magistrate has jurisdiction in this
regard

In the Court of Appeal it was stated that the Magistrate permitting the company to
proceed and asking to pay money is bad
Keagnam Enterprises V E.A Abeysinghe V others
The company was doing a rehabilitation in Ambepussa – Dambulla Road .
And has established a metal quarry ,crusher on the land.their blasting operations have
caused injury and harm to the residents .
So the residents went to the Magistrate and sought relief under section 98( 1) and
104(1) of the criminal procedure code
Company was arguing that the Magistrate has no power
Magistarte rejected it saying the company has no license
So the company went to the Court of Appeal
The main issue in this case was whether the magistrate’s order of chapter 9 of Criminal
Procedure Code been ousted by section 29 of NEA or not

➢ Summary
1. This Plays a vital role in addressing the environmental issues
2. Through this the authorities can punish the wrongdoers and make them take
remedial measures to prevent further harm

3. By utilizing the legal framework under criminal Procedure code Public Nuisance
can be abated ensuring a cleaner and healthier environment .

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12. Pollution

1. Water Pollution
2. Noise Pollution
3. Air Pollution
4. Soil Contamination / Soil Pollution

Water Pollution

• Introduction
- Contamination of water bodies
- Occurs when pollutants are directly or indirectly discharged into water bodies .
- Water Pollution is one of the leading worldwide causes of death and diseases ( 14
000 daily ) Both human and aquatic life
- In Sri Lanka domestic agricultural and industrial activities have been the main reason
for the soil pollution as inorganic elements and sewage discharges from such
activities into the water bodies .

• Provisions
- The relevant provisions are mentioned in following chapters of the National
Environmental Act
a. Environmental Quality
b. Environmental Protection
c. Approval Of Projects
- Section 23 G – Discharge of waste into inland waters not in accordance with
the standars is an offense .
- Section 23 H – General prohibition of inland water pollution
- Section 270 of The Penal Code
Voluntarily fouling the water of any public spring , reservoir is an offence.

• Examples and Case Laws

- According to Central Environmental Authority – 20 odd factories near Kelani
river were removed
- Operation of Coca Cola Beverage Factory was temporary halted after being
blamed for the polluted waste water leakage into Kelani River
- In Ratupaswala case chemicals of a factory cause drinking water to be
contaminated , After a court ruling the factory was relocated .
-
Chunnakkam case SC FR Application No; 141/2015
Page 39/40

Finally, to consider the condition of the 8th respondent's thermal power

station in 2015, the report dated 24th July 2015 marked "8R5" prepared by

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the ITI and submitted to the CEB.This report observes that oil spills and
discharges of oil contaminated wastewater and oil sludge can occur in one
or more of the following four stages of the preparation of an oil fired
thermal power station: (i) in the course of the delivery of fuel diesel and
lubricating oils and their transfer to storage tanks; (ii) from leakage of fuel
diesel and lubricating oils from engines and other machinery during the
operating process of a thermal power station; (iii) as a result of the
practices followed for the treatment and disposal of oil contaminated
wastewater and oil sludge, and (iv) from accidents which result in spillages
of fuel oil/diesel, lubricating oils, oil contaminated wastewater and ail
sludge"
MC Mehta V Union of India & others ,1998 AIR 1115,1998 SCR (2) 530
,Date of Judgement 12/01/1998 ,sources Indian Kanoon;
Page 16

"NATURE OF THE PROBLEM The introduction of modern water

carriage systems neighbouring streams and rivers. This was the
beginning of the problem of water pollution It is ironic that man
from the earliest of his drinking water is drawn list quite recently
streams and rivers from which was subjected to rapid urbanisation
and industrialization the problem of the pollution of natural water
is reaching alarming proportions .the most disturbing feature of this
mode of disposal is that those who cause water pollution are
seldom the people who suffer from it. Cities and industries
discharge their untreated or only partially treated sewage and
industrial waste waters into neighbouring streams and thereby
remove waste matter from their own neighbourhood. But in doing
so, they create intense pollution in streams and rivers and expose
the downstream riparian population to dangerous hygienic
conditions in addition to the withdrawal of water for downstream
towns and cities, in many developing addition to the withdrawal
and riparian agricultural population generally rely on streams and
rivers for drinking water for themselves and their cattle, for
cooking, bathing, washing and names for other uses it is thus
riparian population that specially needs protection from the
growing menace of water pollution. (pages 1 and 2) BENEFITS OF
CONTROL The benefits which result from the prevention of water
pollution include a general improvement in the standard of health
of the population, the possibility of restoring stream waters to their
original beneficial state and rendering them fit as sources of water
supply, and the maintenance of clean and healthy surroundings
which would then offer attractive recreational facilities. Such
measures would also restore fish and other aquatic life."

Page 16/17

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"Apart from its menace to health, polluted water considerably reduces the
water resources of a nation. Since the total amount of a country's utilisable
water remains essentially the same and the demand for water is always
increasing, schemes for the prevention of water pollution should, wherever
possible, make the best use of treated waste waters either in industry or
agriculture. Very often such processes may also result in other benefits in
addition to mere reuse. The application of effluents on agricultural land
supplies not only much needed water to growing crops but also manurial
ingredients, the recovery of commercially valuable ingredients during the
treatment of industrial waste waters often yields by-products which may to
some extent offset the cost of treatment If appropriate financial credits
could be calculated in respect of these and other incidental benefits, it
would be apparent that measures for the prevention of pollution are not
unduly costly and are within the reach of all nations, advanced or
developing. It is fortunate that people are be coming more receptive to the
idea of sharing the financial burden for lessening pollution. It is now
recognised in most countries that it is the responsibility of industries to
treat their trade wastes in such a way that they do not deteriorate the
quality of the receiving waters, which otherwise would make the utilisation
of such polluted waters very difficult or costly for downstream settlers.
-

Noise Pollution

• Introduction
- Means Sound at a level which causes irritation, fatigue ,hearing loss
interferences
- Noise doesn’t lead to chemical pollution of organic natural resources but
affects human beings & other animals directly
- For example such as Community noise and occupational noise which is
caused by
Barking dogs /Household items /Security alarms /Loud music/Road traffic
/Air traffic /Construction /Machinery
- This affects the cardiovascular sytem of humans and may cause coronary
artery disease
- For animals this can cause death due to altering predators ,pray
detention,avoidance,hearing loss and interference with the reproduction.
• Legislation
- The first step was taken by USA by introducing the Noise Code.
- India also have made regulations against fire crackers & loud speakers
- In Sri Lankan context The Central Environmental Authority empowers local
authorities to comply with recommendations as in National Environmental
Act

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- National Environment Act sections 23 P, 23Q , 23R states that no person may
emit greater in volume ,intensity ,quality than the standards.
- The Polic Ordinance also provides that any person making noise at night
without a license commits an offense .
• Court Decisions
- Some of the significant decisions made by the court are as follows
1. No religious body is entitled to religious practice by disturbing the public
by excessive noise
2. Schools,hospitals and court houses have been declared as silent zones
3. Loudspeakers ,amplifiers cant be used between 10pm to 6 am .

Gunarathne V Homagama Pradeshiya Sabha and Others ( 1998 ) 2 SLR

Page 11/12

An application was made to the Supreme Court for infringement of Fundamental Rights
and a settlement was about to be entered when the 7th to 10th respondents
intervened and objected to the settlement on the following grounds

1. Noise emitted by operation of the machinery, unloading of logs, etc., will

create a nuisance and will adversely impact on the place and quiet hitherto
enjoyed by them.
2. Health hazards would be caused by the saw dust.
3. The road would be obstructed by vehicles bringing raw materials.
4. The mill would disturb the calm and peaceful environment of a residential
area.
5. Establishment of a Saw Mill would violate the provisions of the National
Environmental Act and other public health and building regulations."

Page 13

"Environmental Authority to consider the application on its merits. The Central

Environmental Authority then wrote to the Pradeshiya Sabha stating that it had no
objection to the siting of the proposed Saw Mill at the place proposed, subject to
certain conditions being complied with, namely:

1. that the proposed operations of the saw mill should not discharge noise levels
above the 55 decibel limits prescribed under the provisions of the
Environmental Act;
2. that the operation should not be carried on between 6 p.m. and 6 a.m.;
3. that a report, once in three months from the Ceylon Institute for Scientific and
Industrial Research should be submitted with regard to compliance with the
conditions relating to noise levels;
4. that saw dust and other dust particles emanating from the saw mill should not
be a hindrance to the members of the community living in the vicinity of the
proposed saw mill."

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Al Haj M.T.M Ashik and Others v Bandula OIC Weligama and Others SC.FR No.38/2005
The application for infringement of rights was instituted by the Trustees of the
Kappuwatta Mohideen Jumma Mosque in Weligama on the basis that the Police had
imposed certain restrictions on the use of loudspeakers by their mosque which have not
been imposed on two other mosques in the area under section 80 (1) of the Police
Ordinance. EFL and others were permitted to intervene in the case to make a
determination as to the effective guarantee of the fundamental right enshrined in
Article 12(1) of the Constitution for the equal protection of the law in safeguarding the
people from harmful effects of noise pollution.

Sections 23P to sections 23R of the NEA contain provisions relating to noise pollution.
Accordingly it would be an offence to emit noise in excess of the volume intensity and
quality of the standards or limitations prescribed. There are no regulations dealing
directly with the control of noise from religious institutions.

The issue which was discussed in this case was whether the exercise of right to religion
can be restricted by the provisions relating to noise Pollution. (Penal Code, Police
Ordinance and the National Environmental Noise Control Regulations No. 1 of 1966) No
religion advocates a practice that would cause harm to another or worse still as would
cause pollution of the environment, a health hazard or a public nuisance being an
annoyance to the public. Several cases were discussed here and the court gave order
restricting the use of loud speakers.
-

Air Pollution

• Introduction
- The presence of any pollutant that reduces air quality thereby threatning the
health and welfare of the people ,plants & animals

- The main cause of Air Pollution is Human activities which includes

Vehicle emissions / Industrial and power plant emissions/ burning of solid
waste

- Air Pollution from vehicle emission is a major problem in urban areas and
these pollutants can directly and indirectly cause health impacts , global
warming,melting of glaciers ,depletion of the ozone layer etc…

- Air Pollution in a particular place can also affect other parts of the country
due to the dispersal of pollutants through wind currents

• General Law
- Part 4 of the NEA Section 23 J & 23 K deals with Environmental Quality and
makes reference to the pollution of atmosphere.

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- NEA regulations relating to prohibition of materials which deplete the layer

specify the quality of surrounding air it’s specifies permissible ambient air
quality standards and specifies the maximum permissible amounts in the
ambient air of pollutant such as carbon monoxide nitrogen dioxide.
Case law –
Lalanath de Silva V Nandimithra Ekanayake Ministry of forestry and environment And
others
-
The petitioner complained the ambient air quality standards were not being
maintained in some parts of Colombo and stated that this is due to pollution
by vehicles and that the minister of environment should specify others
standards as well under section 23 of NEA and sought a direction of court to
the Minister to make an gazette regulations
- Specifying
mobile emission standards /vehicle specifications standard for importation
/fuel standards
As a result the National Environment Regulation number 1 of 2000 was
gazetted
o Part 1 mobile air emission
- Sets out the permissible mobile air emission .
- limits to every motor vehicle in use in Sri Lanka and no use of a motor vehicle
shall discharge emissions into the atmosphere which exceed these standards.
- The commissioner of motor traffic is empowered to authorised any garage as
an accredited garage for the purpose of testing and certifying the standards
in relation to any motor vehicle.
o Part 2 fuel standards
- Every person who supplies fuel for any use of motor vehicle shall comply
with the fuel standards
o Part 3 vehicles specifications standards for importation
- Every person imports any motor vehicle into Sri Lanka shall comply with the
vehicle specification standards
- In addition the general provisions of penal code set out in section 271
provide whoever voluntarily vitiates the atmosphere in any place so as to
make it noxious to the health commits an offence in terms of the code

Geethanee & Environment Foundation limited vs Minister of environment and

others

• Led to the preparation of road maps to reduce air pollution

- .
Anura Lamahewa v. Habaraduwa Pradeshiya Sabha and Others Fernando (1995) 2
SAELR 16 Appeal under section 23E of the NEA by Kamal Femando (1997) 4 SAELR
16.

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• The Appellant applied for an EPL in respect of a brick kiln. The CEA imposed
two conditions namely that the kiln should be situated 200 meters away
from the Respondent's residence and the smoke from the kiln be disposed
by means of a chimney 30 feet high.

• The Secretary held that the condition imposed on the Appellant requiring
him to maintain a distance of 200 meters was arbitrary and had no technical
basis. The second condition was held to be reasonable according to the
guidelines issued.
-
-

Soil Contamination / Soil Pollution

• Introduction
- Caused by the presence of xenobiotic chemicals or other alteration in the
natural soil environment
- It is typically caused by Drilling of oil refineries ,accidential spills ,acid rains,
intensive farming ,deforestation, genetically modified plants ,nuclear
wastes,industrial accidents ,landfill and illegal dumping.
- Contamination is correlated with the degree of industrialization & intensity of
chemical usage .
• Legislation
❖ Under the Sri Lanka Soil Act there are several institutions responsible to protect soil
resources They are
Ministry of Environment
Ministry of Land
Ministry of Mahawei Development
Ministry of housing
Ministry of highways
Ministry of plantation industries
Ministry of provincial councils
Ministry of finance
Ministry of mines & minerals
Ministry of forestry & irrigation

❖ Soil Act clearly proposes measures ,activities & research in order to protect soil
resources from various damages .
❖ Due to poor implementation of regulations & lack of public awareness ,rich soil in
the hill country has been eroded.
❖ One obvious repercussion of soil erosion is reservoir sedimentation.
Ex; The more than 40% of the full capacity of the Polgolla Dam is filled with silt.
❖ Colombo is the most affected urban area which faces a serious threat with respect to
the disposal of around 1500 tons of soild waste material per day.

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❖ National Environment Act

National Environment quality provisions of this Act provide for the regulation of soil
pollution
Section 23 M – no person shall discharge , deposit waste into the soil except in
accordance with such standards or criteria as may be prescribed under the Act
Section 23 N ( 1) – Genral priovisions for the prevention of soil pollution

❖ Case law –
✓ Mrs . Jamamloodeen Dullo V Minister of Environment
Environment Appeal Tribunal of Mauritius ,case no 3/1

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13. Solid Waste Management

❖ Introduction
▪ Is a growing problem in urban areas of Sri Lanka and this problem is
aggravated due to the absence of proper solid waste management in
country.

This improper management of solid waste which includes

▪ Municipal waste
▪ Agricultural waste
▪ Industrial waste
▪ Plastic waste has led to severe health hazards & environment pollution
throughout Sri Lanka.

Solid Waste is often collected in a mixed state & dumped in environmentally

sensitive areas such as road sides ,marshlands, public places & wildlife areas causing
pollution of ground & surface water as well as air pollution & more ……….

These open dumps of solid waste are ideal places for breeding of disease vectors like
mosquitoes.

❖ What is solid waste management?

the discipline associated with the control of generation storage ,collection, transfer
and transporting ,processing ,disposal of solid waste in a manner in accordance with
the best principle of public health economy engineering conservation aesthetics and
other environment considerations and that is also responsive to public attitudes.

In Sri Lankan context

Waste management is governed by the gazetted regulation No.1534/18 issued under
the National Environmental Act under section 23A and 23B of the Act.
Local Government Act holds local authorities responsible for waste collection and disposal
within their jurisdiction
Municipal council ordinance /urban council ordinance/ Pradeshiya Sabha act
Special provisions can be found in those ordinances and Responsibilities of local authorities
includes sweeping cleaning streets collecting removing Street refuse timely removal of
house refuse cleaning of latrine and cesspits and proper disposal of all refuse
13th amendment to the constitution provincial councils have the power to manage
Environmental issues and empowered to have Provincial Environment statutes.
Nuisance ordinance can also be used by local authorities to prevent unwanted dumping

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National Environment Act of 1980 provides the legislative framework for Environment
protection
Ministry of environment formulated the National strategy for solid waste management in
2000 recognising waste avoidance reduction reuse recycling and environment sound final
disposal
In 2007 the national policy for solid waste management was introduced to ensure
integrated and environmentally friendly practices at National provincial and local levels
Pili Saru program 2008
Established under Central environment authority
Its aim is to maximize resource refuse before final disposal and provide technical and
financial assistance to local
Is also authorised to take legal actions to any local authorities that fail to manage waste .
In 2005 general guidelines for solid waste management was introduced by central
environment authority Regulations and standards were set for the generation ,collection
,transport, storage, recovery ,recycling and disposal of scheduled waste operations related
to these activities requires an environment protection license
Sri Lankan standards institution established specification for compost from municipal and
agriculture waste
Summary
✓ Improper management of solid waste in Sri Lanka including plastic waste has
led to health hazards and environment pollution
✓ The national environment act along with regulations and orders provides the
legal framework
✓ Local authorities provincial councils and Pili Saru program has played crucial
role in waste collection disposal enforcement

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15. International Environmental Law

➢ Introduction
- has emerged as a distinct branch of Law in response to the global
environment degradation
such as Overexploitation of natural resources loss of biodiversity, deforestation, desertion ,
pollution of international waters, global warming and ozone depletion.

➢ Territorial sovereignty
In the past State could freely utilize their resources without considering harm to neighbour
States but due to International Law concept the States now have restrictions-

Trail Smelter case

Canada was requested to reduce pollution affecting its river which was caused by Smelter
plants near USA Canada border
Corfu Channel case
International Court of Justice stated that Albar was obliged to warn ships to prevent loss of
human life & damage to Britain novel ships.
Lax Lanox case S(pain V France )
Both states were using the waters from lake. However France diverted its course in order to
generate electricity. Spain claimed that the said Act of France would affect the rights of the
Spanish People.
The court held that there was no infringement of such rights as France had taken adequate
measures to protect them.

➢ Development
Due to the increase of Environmental Issues and concerns for the protection of
environment ,a need for a global conference on environment was felt.
The first conference held in Stockholm led to the Declaration of the 1972 Stockholm
Declaration on human environment
PRINCIPLE 24 of the Declaration emphasizes the importance of the spirit of
cooperation. It states “International matters concerning the protection and
improvement of environment should be handled in a cooperative Spirit by all
countries big or small on equal footing

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Corporation through multilateral of bilateral arrangements is essential to effectively

control, prevent ,reduce and eliminate adverse Environmental effects resulting from
activities conducted in several countries .
-improving and transferring scientific and technological knowledge
-assistant in emergency situations relating to environment
- control of transboundary movement of hazardous waste
- notification of natural disasters
the Stockholm conference on human environment contains 26 principles which
inspire and guide the people of the world in the preservation and enhancement of
the human environment accordingly if natural resources are used wisely all would be
benefited and the quality of life be improved
Principle 1 States as follows
“man has the fundamental right to freedom equality and adequate conditions of life
in an environment of quality that permits a life of dignity and well being and he does
the Solemn responsibility to protect and improve environment for present and future
generations”

Principal 21 States as follows

“States have in accordance with the charter of the United Nations and the principles
of international law the sovereign right to exploit the own resources pursuant to their
own environment policies the responsibility to ensure that activities within their own
jurisdiction or control do not cause damage to the environment of other states of
areas beyond the limits of natural jurisdiction States share corporate to develop
further the international law regarding liability and compensation in terms of
pollution and other environmental damage caused by activities within the jurisdiction
or control of such States to areas beyond their jurisdiction .The above principles
articulated the concerns of state responsibility for transboundry environmental
damage in an international agreement.”

The Rio declaration - Environment and development 1992 contains 27 principles

dealing with sustainable development without compromising the Environmental
requirements of the future generations the responsibilities of the states towards
achieving sustainable development

Unique features of IEL

• Extensive use of soft law – E.g. Stockholm, Rio Conventions

• Framework/protocol approach – Ozone regime, climate regime

latest - hybrid document – Paris Agreement, 2015

• Reliance on science

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• Linkages with other fields

economic development – ozone depletion, climate change, generation of hazardous waste
human rights, justice and good governance
Environmental Justice , right to a healthy environment

trade and investment

North-South divisions

Significance of IEL principles

• As a signatory to several international environmental and human rights treaties, Sri Lanka is
required to fulfil those obligations at the domestic level (Vienna Convention on the Law of
Treaties – fulfill treaty obligations in good faith)

• As a dualist country, SL adopts legislation to implement those obligations

• However, if an obligation/principle has become part of customary international law, no such

legislation is necessary

Environmental treaties that SL has ratified

▪ Sri Lanka has ratified all the major environmental treaties

▪ Include UNFCCC, UNCLOS, Kyoto Protocol, Vienna Convention on the Ozone layer, Montreal
Protocol on Ozone layer, Biodiversity Convention, Biosafety protocol, Paris Agreement,
Desertification Convention

▪ Signed major declarations including Rio Declaration, Stockholm Declaration etc.

Domestic legislation

▪ SL has adopted several pieces of legislation/ regulations to give effect to its environmental
obligations

▪ Some examples include the Ozone Unit to implement policies and regulations relating to
Ozone depletion

▪ Sustainable Development Act of 2017 – to implement SDGs and to establish a Council (one
of the few countries to have adopted a separate law on sustainable development)

▪ Thus, IEL principles are applicable in SL to the extent that they are incorporated in treaties
(as a soft law) or form part of customary International Law

Eppawala Case

▪ Amarasinghe J said that even principles in declarations like Stockholm and Rio could become
binding:

▪ “In my view, the proposed [mining] agreement must be considered in the light of the
foregoing principles [principles in Stockholm and Rio Declarations].

▪ Admittedly, the principles set out in the Stockholm and Rio De Janeiro Declarations are not
legally binding in the way in which and Act of our Parliament would be. It may be regarded
merely as ‘soft law’.”

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▪ “Nevertheless, as a Member of the United Nations, they could hardly be ignored by Sri
Lanka.

▪ Moreover, they would, in my view, be binding if they have been either expressly enacted or
become a part of the domestic law by adoption by the superior courts of record and by the
Supreme Court in particular, in their decisions.”

This is a very significant pronouncement.

Conclusion

• IEL has come a long way since Stockholm conference in a short span of time

• Separate branch of IL and some topics have become separate areas of law (climate law)

• Achievements - Adopted many treaties, developed principles and non-compliance

procedures, established institutions and shaped national law

• As a signatory to many treaties SL has to implement environmental principles at the national

level

• Challenges – global environmental problems, a by-product of economic development, have

emerged requiring international cooperation and international action

• It requires us to devise new legal strategies, principles and institutions at every level - local,
national, regional, international

• Many areas of law will be affected by CC and new areas of law are emerging – carbon
trading, carbon taxes, insurance, disasters, renewable sources of energy etc.

• Forced displacement of millions of people, submergence of sovereign states, inundation of

low-lying areas, & severe weather events, etc. will require us to adapt existing legal
principles and adopt new ones.

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15. National Environmental Act

• Amended in 1988 & 2000

• Similar to National ENY Policy Act of US
• Preamble:
i. Establish the CEA its functions
ii. Provide for protection. management enhancement of environment
iii. Provide for regulation, maintenance, control quality of ENV
iv. Provide for Prevention | Abetment / control of Pollution

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17. Central ENV Authority

1. Part I NEA - establishes

2. Part II NEA - powers functions / duties
Section 10 NEA- 18 powers of CEA

✓ Administration of the provisions of the Act & Regulations

✓ Recommendations to Minister on Policy and Criteria
✓ Pollution Prevention & Env quality
✓ Monitor / Evaluate ENV impact of new projects
✓ Enforce env policies through local authorities.
✓ Publishing Reports & info on ENV protection &management
✓ Carrying out research & studies relating to ENV
✓ Providing Into & public awareness in relation to ENV protection

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Annexure 1 ( 5 main principles of Environmental Law in a nutshell)

enera on
E uity

nter
ublic trust
octrine

evelopment
ustainable
olluter ays
rinciple

recau onary
rinciple

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