Law And Policy

This post presents concise summaries of –
1. Environmental justice through Tort Law (Absolute and Strict liability)
2. The National Green Tribunal Act, 2010

Environmental justice through Tort Law (Absolute and Strict liability)

Marshall S. Shapo’s article examines the relationship between tort law and environmental risk management, exploring how traditional tort doctrines address environmental harms and how they complement, overlap, or diverge from modern environmental regulation. Shapo argues that tort law, though retrospective and case-specific, plays a vital role in assessing and responding to environmental risks, often serving as a gap-filling mechanism where regulatory systems fall short.

I. Tort Law as a Framework for Risk and Responsibility

Shapo begins by noting that tort law “cleans up messes” – it provides remedies to those harmed by others’ actions across varying degrees of fault. While tort law evaluates risk after harm occurs, it also shapes behavior by defining the boundaries of acceptable risk creation. Even without a forward-looking regulatory structure, tort doctrines express society’s moral and cultural tolerance for environmental injury, signaling limits on conduct that endangers non-renewable or fragile resources.

However, like regulatory law, tort law faces the challenge of relativity in risk assessment. What counts as “safe” or “reasonable” varies with scientific uncertainty and social value judgments. Shapo uses the example of nuclear waste storage at Yucca Mountain to illustrate that even advanced risk management involves subjective determinations — a problem shared by law, science, and economics alike.

II. The Common Law and Environmental Harm

Shapo then explores how various tort doctrines – negligence, strict liability, nuisance, and trespass – address environmental risks.

1. Negligence

Negligence assesses whether conduct falls below the standard of reasonable care. Courts evaluate both the degree of risk and the social value of the defendant’s activity. It is inherently moral and contextual: what is “reasonable” depends on foreseeability and societal expectations. Negligence law thus requires courts to make value judgments about risk acceptability, balancing efficiency and ethics.

2. Strict Liability

Derived from Rylands v. Fletcher (1868) and codified in the Restatement (Second) of Torts §§519–520, strict liability applies to abnormally dangerous activities, such as chemical storage or transport. Shapo discusses Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (1990), a case involving a spill of toxic acrylonitrile. The district court imposed strict liability, while Judge Posner on appeal reversed, emphasizing economic efficiency and practicality – that rerouting hazardous shipments around cities would be prohibitively costly.

This contrast, Shapo argues, reflects risk assessment in action: courts weigh the magnitude of harm against the social utility of the activity. Tort law’s flexibility allows for nuanced judgments that sometimes surpass rigid regulatory formulas. While economic models stress cost-benefit efficiency, tort adjudication integrates moral, contextual, and distributive factors, providing a richer analysis of risk.

3. Private Nuisance

Private nuisance, defined as an “unreasonable interference” with another’s enjoyment of land, encompasses intentional, negligent, or abnormally dangerous acts. The landmark Boomer v. Atlantic Cement Co. (1970) exemplifies tort law’s balancing approach: despite clear pollution damage, the court denied a full injunction and instead awarded permanent damages, citing the economic value of the defendant’s cement plant.

Shapo notes that Boomer embodies the intersection of regulation, law and economics, and social value judgments. It acknowledges pollution as a cost of industrialization yet preserves tort as a “gap-filler” pushing regulatory reform – a “spear” provoking change. The decision also foreshadowed Calabresi and Melamed’s (1972) framework on property and liability rules, anticipating modern law-and-economics reasoning.

4. Public Nuisance

Public nuisance involves interference with collective rights like public health, safety, or comfort. The Restatement defines it as conduct significantly affecting public welfare, reflecting another form of risk balancing. Although less frequently invoked, it remains conceptually powerful as an adaptable common law tool for addressing broad environmental harms.

5. Trespass

Trespass, by contrast, is anti-risk-assessment: liability arises when one intentionally causes a physical invasion of another’s land, regardless of harm. In environmental litigation, trespass serves as a strict liability doctrine with minimal balancing, offering a sharp contrast to the nuanced weighing in negligence or nuisance claims.

III. Tort Law’s Role in Environmental Risk Assessment

Shapo concludes that tort law’s contribution to environmental protection lies in its case-by-case moral judgment, especially where regulation is uncertain or ineffective. While statutes like CERCLA and the Clean Air Act seek to institutionalize risk control, tort remains vital in addressing novel or unregulated hazards.

Unlike centralized regulation, tort law operates without a “Tsar” – no single authority dictates outcomes. Instead, it evolves organically through decentralized adjudication. This “messy” flexibility is its strength: tort adapts to changing scientific knowledge and societal values.

The author revisits the Yucca Mountain example to underscore that both legal and scientific assessments of risk are inherently value-laden. When experts debate whether containment should last 10,000 or a million years, their disagreement reflects normative choices, not pure science. Similarly, courts in environmental torts translate uncertainty into concrete judgments about reasonableness, causation, and duty — providing a human-centered model for decision-making under uncertainty.

IV. Tort as the Citizen’s Last Resort

In closing, Shapo suggests that tort law is the “ultimate refuge of the threatened citizen.” When regulatory agencies fail or politics delay action, tort litigation allows individuals and communities to demand accountability. Whether through negligence, nuisance, or trespass claims – or even public nuisance suits against government projects like Yucca Mountain – tort provides a forum for democratic participation and moral evaluation of risk.

Shapo envisions that when future courts decide such cases, their reasoning will inevitably rest on tort-like principles of risk assessment, demonstrating that tort law remains the foundation for reconciling environmental protection with social progress.

Environmental Courts in Comparative Perspective – Preliminary Reflections on the National Green Tribunal of India

In this article, Domenico Amirante explores the global development of Environmental Courts and Tribunals (ECTs), highlighting their role in addressing the implementation gap in environmental law and focusing on India’s National Green Tribunal (NGT) as a major institutional innovation. The central thesis is that while environmental legislation exists globally, its effectiveness depends largely on judicial enforcement. Specialized environmental courts, therefore, represent an evolving response to ensure accountability, expertise, and access to justice in environmental governance.

I. Judiciary’s Role in Environmental Protection

Amirante begins by noting that despite widespread environmental legislation, enforcement remains weak across much of the world. The Johannesburg Principles (2002) affirm the judiciary’s essential role as the “guardian of the rule of law” and a partner in promoting compliance with environmental and sustainable development norms. Courts are no longer passive interpreters but active enforcers of environmental principles, particularly in nations where administrative mechanisms are ineffective.

In developing countries, this judicial assertiveness compensates for governance gaps. It ensures that environmental law is not merely symbolic but operational. The judiciary’s interpretive power also provides coherence to fragmented environmental policies and fosters stability in legal expectations for both government and private actors.

II. Global Models of Environmental Adjudication

Amirante identifies three broad models of environmental adjudication:

1. General Jurisdiction Model : Common in Europe and the United States, where traditional civil, administrative, or criminal courts handle environmental disputes. This approach reflects the “myth of the generalist judge,” an aversion to specialization. Environmental law here evolved as an ancillary branch rather than a constitutional principle, resulting in reliance on existing courts rather than new institutions.
2. Internal Specialization (Green Benches) : A transitional model used in countries like India, where certain judges or divisions within regular courts handle environmental matters without restructuring the judicial system. This ensures flexibility and accessibility but may limit technical expertise.
3. Specialized Environmental Courts or Tribunals : Adopted in many emerging and developing economies, this model introduces dedicated environmental adjudication with technical members, quicker procedures, and reduced costs. These courts are most effective where constitutions already recognize the right to a healthy environment.

Amirante notes that by 2010, more than 360 environmental courts and tribunals existed worldwide, most created within the previous five years- indicating a global shift toward specialized environmental justice.

III. Comparative Experiences

Europe and the U.S. have shown relative reluctance toward creating environmental courts. While nations like Sweden and Austria have established specialized tribunals integrating scientific experts, most others rely on administrative or general courts. The Vermont Environmental Court in the U.S. is a rare example, exercising de novo review over environmental decisions.

By contrast, the Australasian model exemplified by the Land and Environment Court of New South Wales (1979) and New Zealand’s Environment Court (1996)—has significantly influenced Asian reforms. These courts combine judicial and expert members, adopt mediation and enforcement powers, and emphasize open public access. The New Zealand court, for instance, can issue enforcement orders and act as an “adjudicator of sustainability.” Both models demonstrate the advantages of technical expertise, flexible procedures, and integration of environmental science with legal principles.

IV. The Indian Context and Judicial Activism

India’s environmental jurisprudence emerged through a mix of constitutional reform and judicial innovation. The 42nd Constitutional Amendment (1976) inserted Articles 48A and 51A(g), establishing environmental protection as both a State duty and a citizen’s obligation. The Supreme Court of India, through expansive interpretation of Article 21 (right to life), recognized the right to a clean environment as fundamental.

Through Public Interest Litigation (PIL), the Court became a proactive enforcer of environmental norms. Landmark cases like Mehta v. Union of India (1986) and A.P. Pollution Control Board v. Nayudu (1999, 2001) introduced international principles such as precautionary and polluter-pays principles, and urged the inclusion of scientific expertise in environmental adjudication.

The Law Commission’s 186th Report (2003), inspired by the Australasian courts, proposed specialized Environmental Courts combining judicial and technical members. This eventually led to the National Green Tribunal Act, 2010, creating a dedicated environmental adjudicatory body.

V. Structure and Jurisdiction of the National Green Tribunal

The NGT is a federal judicial body with both original and appellate jurisdiction over key environmental statutes, including the Water, Air, Forest, and Environment Protection Acts. It is composed of a Chairperson, judicial members, and expert members, ensuring balance between law and science. Its open locus standi provisions (Section 18) enable citizens, NGOs, and representative bodies to file cases, mirroring the inclusive spirit of PIL.

However, Amirante highlights certain limitations- notably the six-month filing deadline and the exclusion of criminal jurisdiction. Despite these, the NGT embodies a hybrid model of judicial efficiency and technical expertise. It reduces the Supreme Court’s PIL burden while expanding access to environmental justice at a lower level.

VI. Comparative Lessons and Broader Implications

Amirante concludes that the NGT represents a judge-driven reform, organically evolved within India’s legal and constitutional framework. Unlike externally imposed models, it reflects local judicial activism and societal needs.

Key lessons from India’s experience include:

• Integration of scientific experts into judicial structures ensures informed decision-making and procedural transparency.
• Judicial initiative and legislative support can jointly institutionalize sustainable governance.
• Liberal access to environmental justice strengthens democratic accountability.
• Coordination with higher courts maintains consistency within the broader judiciary.

Finally, Amirante positions India’s NGT as a model for other Asian democracies, demonstrating how specialized environmental adjudication can reconcile development and sustainability. Though not a “one-size-fits-all” solution, the NGT stands as a milestone in the global evolution of environmental rule of law.