Environmental Pollution, Comparative Law, and Jurisprudence in California and India
India is a nation of over one billion people, most of whom are crowded together in the various urban centers of the nation. The average age in India is 25, while the average life span is 65. Sixty percent of the labor force is composed of subsistence farmers. Twenty-five percent live below the poverty line. The nation, as a whole, is $117 billion in debt. India has ongoing border disputes with Pakistan, China, Nepal, and Bangladesh. Environmentally, India suffers from the natural disasters of yearly floods, droughts, monsoons, and earthquakes; and it is gravely strained by the man-made crises of deforestation, soil erosion, overgrazing, desertification, industrial and vehicular air pollution, and water pollution from the illegal and non-regulated dumping and seeping of raw sewage, industrial toxins, and pesticides.[2]
The health of the nation’s people is critically affected by these poor environmental and economic conditions. According to the World Health Organization, current endemic diseases in India include the following: HIV (5 million infected, or 1 out of every 100 adults), malaria (2.2 million infected), tuberculosis (1.2 million infected), leprosy, filariasis, visceral leishmaniasis, Japanese encephalitis, dengue fever, and serious mental diseases (95% of which have been diagnosed as psychosis).[3] The WHO report concludes that many of these diseases are a direct result of urban overcrowding, polluted water and air, malnutrition, and ultimately, a lack of comprehensive environmental legislation and adequate enforcement of current environmental legislation and judicially-mandated remedies.[4]
While these drastic circumstances have existed in India for decades, the industrialization that has taken hold of the nation during the past thirty years has exponentially exacerbated the issue. Behind this push for industrialization, the Executive and Legislative branches of the nation of India have worked together to create and promote India’s New Economic Policy of 1991. In full support of that new official direction, the International Monetary Fund and the World Bank approved major quid pro quo loans for India, ensuring that new pro-development policies would be effectuated.[5] As a result, multinational companies such as De Beers and Phelps Dodge (mining industry); Enron (energy); Pepsi, Kellogg, Pizza Hut, and McDonald’s (foods); and Cisco, Oracle, Microsoft, and the rest of the IT big-wigs have all invested deeply in their own operations in India. Just as one example, pharmaceuticals in India is presently a nine billion dollar industry, and is expected to triple in value within the next five years as a direct consequence of India’s new tough patent protection laws.[6] These multinational industries have increased the gap between poor and rich in India; and they have vastly polluted India’s environment, dumping and importing millions of tons of toxic and hazardous waste into India’s air, water, and soil, and depleting India’s precious natural resources at the expense of vast environmental and human health consequences.[7]
One of the biggest environmental disasters that ever faced the people of the world occurred in Bhopal, India in 1984. It was directly caused by a multinational chemical and pharmaceutical manufacturer, Union Carbide Corporation, which is presently a wholly owned subsidiary of DOW Pharmaceuticals – one of the biggest investors in India’s New Economic Policy. During the late evening of December 2, 1984, the grossly dilapidated chemical plant at Union Carbide exploded, releasing twenty-seven tons of a toxic gas known as MIC, a cyanide isotope. That night, ten thousand people in the surrounding impoverished neighborhood died from breathing in the toxic gas. Over the next few years, another fifteen thousand people died from latent exposure to the MIC that was released from the explosion.[8] One hundred thousand people continue to suffer severe and chronic diseases of the inner organs, flesh, and eyes as a result of the MIC gases.[9] While this was clearly the worst tragedy of its kind, India’s people are regularly assaulted by industries in India and abroad dumping literally billions of kilograms of toxic effluents and hazardous waste into India’s environment.[10]
Lax legislation and enforcement is a primary cause of this problem. For decades before the Bhopal disaster, journalists, NGO’s, citizens, and outspoken government officials warned Union Carbide that their chemical plant was in gross disrepair and thus a danger to the nation. Union Carbide refused to upgrade their plant’s condition, and India’s government remained silent on the issue. This official silence continued well after the Bhopal disaster. In the civil suit that followed the explosion, the Supreme Court of India levied $470 million in damages against the company, which it paid into the reserves of the Bank of India. The majority of these monies have never reached their victims as a result of political and bureaucratic tie-ups. Thousands of victims have brought private and class action suits against the Bank of India in order to access their respective share of the damage awards, yet these cases themselves are still pending in a seemingly endless backlog of cases on the dockets of India’s courts.[11]
Meanwhile, the bottom-line advancement of industries in India is exponential. All but the eighteen most dangerous industries in India are completely unregulated, unmonitored, and unlicensed. With comprehensive economic protections legislated in favor of industries, and no viable economic nor environmental safety net for the people of India, it is no wonder that the central region of India has come to be known as the Golden Corridor – a region comprised of 190 industrial centers, consisting of hundreds to thousands of firms each.
The official deceit makes all this even more insidious. By all appearances, India is one of the world’s largest and brightest democracies – a progressive nation with strong concerns for the environment. Of course, this is the message that the nation’s officials, like India’s pro-West, pro-business, and pro-science President Kamal, want the international community to hear.[12] On the books, India has some of the most advanced-sounding environmental protections in the world. There is the Water Prevention and Control of Pollution Act of 1974, the Air Prevention and Control of Pollution Act of 1981, the Environment Protection Act of 1986, the Cigarettes and other Tobacco Products Act of 2003, the Bio-Medical Waste Rule of 1998, the Recycled Plastics Act of 1999, the Municipal Solid Wastes Act of 2000, and even the Batteries Act of 2001![13]
Regardless of such legislative fanfare, the reality on the ground, as noted earlier, is bleak. Taking notice of such devastation, the courts of India have done their share to try to both literally and figuratively “clear the air.” Along with the provincial “people’s courts” known as the Lok Adalats, which often settle small claims and class action suits, India’s High Courts and Supreme Court have dedicated themselves to improving the living conditions of India’s people by way of judicial activism, procedural liberalization, and an open ear to public interest concerns.[14] This major political shift in the Court’s approach to public interest litigation occurred after the 1975-1977 Emergency Period, during which the Court realized its vulnerability to the other branches’ attempts to undermine its power, and that the Court’s major source of strength lied in the support it could muster among the people of India. Thus, in a reach for greater institutional activism in the political structure of India, the Supreme Court began to redefine itself as a populist hero.[15]
Since the Emergency Period, the Court has created various procedural and substantive portals expressly for the benefit of improving the lives of the Indians. Article 21 of the Indian Constitution states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” In Maneka Gandhi v. Union of India, the Supreme Court moved away from a positivist approach to Article 21, stating that the words “life” and “liberty” are textured and expandable to include a host of other unenumerated natural rights, and that the Court held the right to create “procedures” that would make justiciable any breaches of such expansive rights to life and liberty.[16] In cases since Maneka Gandhi, the Court has very broadly interpreted these rights to include, among others, the rights to a clean and safe environment and to good health. The Court justifies such expansion of rights by pointing not only to its own powers under the Constitution, but also to Directive Principle 48A and Fundamental Duty 51A in the Constitution, which state that it is the duty of the State and of every citizen, respectively, to “protect and improve the natural environment.” Moreover, the Court has stated that, where the legislature and the executive branches have failed to effectively safeguard the lives and well-being of India’s citizens and its environment, it rests upon the Court to fill this void.[17]
In further seeking to expand its powers, the Court has broadened its jurisdictional powers by liberally interpreting the Constitution. The Constitution of India has granted the Supreme Court certain powers which the Parliament may further enlarge. As concisely summarized by Prof. Singh of the University of Delhi in India,
The Supreme Court is a court of record having, among other things, the power to punish for contempt. . . . It has incomparably wide original, appellate, and advisory jurisdictions. The Supreme Court also has the following powers: to review its decisions; to make such order as is necessary for doing complete justice in any cause or matter; to enforce its decrees and orders; to order attendance, investigation, and discovery; to transfer cases to itself or from one High Court to another; and to regulate its practice and procedure. . . . The law declared by the Court is binding on all courts in India. All civil and judicial authorities are required to act in its aid.[18]
Additionally, Articles 32 and 226 state that the Supreme Court and the High Courts, respectively, “shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the fundamental rights” of the Indian people, and in the case of Article 226, referring to the powers of High Courts to issue writs, “for any other purpose.” The Court has taken full advantage of the potentially broad implications of the wording of these Articles. The phrases “in the nature of” and “for any other purpose” have been expanded by the Court to allow it to issue remedies that the Court creates on its own accord, and that these remedies can be for breaches of rights other than of the “fundamental rights” listed in the Indian Constitution.[19]
Furthermore, the Court has used Articles 32 and 226 to issue “directions” to an extent never legitimately imagined by any Supreme Court in the Western world, nor, for that matter, by the framers of India’s Constitution.[20] In various cases, the Court has issued “directions” that actually make laws in previously unlegislated areas, thereby creating binding precedent on lower courts, government bodies, private institutions, and citizens.[21] Additionally, under what it interprets as its Constitutional powers, in many cases, the Court has created commissions to help inform and enforce its directions.[22]
The Court also created a form of epistolary jurisdiction, through which it can hear claims based not only on formal petitions, but rather through informal letters addressed to the Court. Furthermore, whenever the Court becomes aware of threats to the rights of the public, the Court can actually initiate inquiries and bring parties before it on its own motion. This is indeed a highly expansive and controversial form of jurisdiction, which the Court justified in Bandhua Mukti Morcha v. India by addressing the critical injustices and poverty that face the typical citizen of India.[23] There, the Court also expanded the legal notion of standing by stating that any person, not just the person who has suffered direct injury, could move the Court for the enforcement of a fundamental right that has been breached.[24]
Together, the expansion of these procedural hurdles and substantive rights has empowered the Courts of India, bringing the Courts significant institutional protection from the other branches. Simultaneously, these factors have benefited public interest litigants in India, to a degree. Although the Court has come to be seen as the “savior” of the people in India against the other seemingly indifferent or outright hostile branches of government, and against the multinational firms that plague the environment and cheat their workers, the real effects of the Indian Supreme Court’s judicial activism are deeply problematic.[25] The precedent created by such adventurism is one that eschews the democratic principle of separation of powers, thereby threatening the future of India’s democracy with an insidious oligarchy.
As it stands, Article 124 of the Indian Constitution provides that the Justices of the Supreme Court, of which there are a total of twenty-six, including the Chief Justice, are all appointed by the President of India, after consultation with the Chief Justice of the Supreme Court, and any of the Chief Justices of the High Courts that he so chooses. The mandatory age of retirement for Justices is sixty-five. The power that the Executive retains over the Judiciary is extensive, in that it may appoint Justices that serve the Executive’s policy goals. Although this appointive power of the Executive is only utilized upon the rare circumstances of a Justice’s retirement (or removal – a situation never encountered thus far in India), it permits the President a huge amount of influence in the Judicial posture of the nation, especially since the precedent of judicial activism has been so deeply engrained in the Indian political experience since the late 1970’s. The populist heroes of the Supreme Court, Chief Justice Bhagwati and Justice Iyer, have both retired. The future appointees to the Courts of India will surely reflect the pro-industry politics of the New Economic Policy and of President Kamal. Though there have been legislative, judicial, and academic efforts to overhaul this single-handed appointment power of the Executive, the current system, with its lack of transparency and consensus, threatens the future of public interest litigants in India.[26]
Even if the present Judiciary, with its populist fervor, continues to act independently of the Legislature and Executive in its formulation and enforcement of laws through its judicial “directions” and “orders,” the efficacy of such resolutions of serious public crises remains dubious. Harkening back to the Bhopal disaster, we can see how the lack of unity between the branches of the government trammels the remediation of damages caused by that fateful explosion. The Legislature, with its power of the purse, and the Executive, with the power of the sword, must both work together with the Judiciary in order to effectuate any positive changes in society. While the separation of the branches of government is important in aiding a democracy to avoid the lure of oligarchy, a certain level of cooperation is required. India has seen the breakdown of such cooperation between the Judiciary, on the one hand, and the Executive and Legislative Branches, on the other, all to the detriment of its citizens.[27]
The Court’s liberalization of substantive rights and procedural mandates has certainly broadened the range of causes of action and extended a grand measure of openness to the downtrodden of India. In a poor nation of over one billion people, the numbers of claimants that presently clog the dockets of the Supreme and High Courts of India, however, have essentially stifled the efficient handling and resolution of these cases.[28] Even with the parallel legal systems of Lok Adalats, the number of epistolary and formal petitions filed in the courts exponentially outreaches the abilities and resources of judicial officials to entertain them.
Finally, there is the problem of the cultural gap between lawyers and judges, on the one hand, and the average citizen of India, on the other. The economic, educational, political, and cultural differences between these two sectors of society surely do not need to be listed. The schism is built into the system. For example, in order to ensure jobs for graduates, the curriculum of law schools in India today are geared towards corporate and private interests, much like in most Western law schools.[29] This furthers the gap of common experience that is necessary for legal professionals to fully effectuate their clients’ needs. Too often, the attorneys and judges have worked together to create remedies for needy clients, all to the exclusion of any input or approval from the plaintiffs.[30] While in the USA, this type of judicial process would create a strong presumption, if not de facto proof, of breaches of professional responsibility on the part of attorneys and judges, and while such a degree of judicial activism would likely be considered unconstitutional due to a breach of separation of powers, in India’s backlogged court system and toxic natural environment, this methodology is simply attempting to be expeditious.[31]
Clearly, the Indian legal system operates in a bubble. US President Jackson is known to have made the following comment to journalists on one of Chief Justice Marshall’s opinions, in which he tried to empower the fledgling Supreme Court: “John Marshall has made his decision; now let him enforce it!”[32] It is precisely this insurmountable challenge that frustrates India’s Supreme Court, and in review, leaves many poor plaintiffs without effectuated remedies.
Of course, judicial activism is not merely an Indian phenomenon. While the Supreme Court of the USA shows much institutional deference, post-Chevron, to the EPA and other environment-regulating administrative agencies, the Court has revealed a strong measure of policy activism in its application of procedural and substantive laws in the last twenty years. This policy activism of the US Federal Courts has certainly been influenced by the global economic policies of this nation. In contrast with India, the USA’s three branches of government work together towards such a global economic vision. Certainly, environmental concerns raised by plaintiffs in our federal courts do not serve to trammel the nation’s “race to the bottom-line.”
During the trade deficit of the 1970’s and 1980’s, the USA instituted many protectionist measures to ensure that our goods and services could compete more vigorously on the world market. Through muscle-flexing military operations in the Middle East, Eastern Europe, the Pacific Rim, and Africa, and more so, through eco-political alliances – such as the grand expansion of the OECD in the 1990s, the creation of NAFTA (1993), the US-Israel Free Trade Agreement (1985), the Trans-Atlantic Economic Partnership with Europe, the Asia-Pacific Economic Cooperation Agreement, the Partnership for Economic Growth and Opportunity for Africa, and through a powerful and directive presence in international economic bodies such as the World Trade Organization, the International Monetary Fund, the World Bank, US AID, and GATT, the USA has provided first-in-line positions for its major multinational firms.[33]
This nation’s federal judges have certainly been educated about the importance of helping this global economic effort. As Mr. Kendall and Mr. Sorkin point out in their 2001 Harvard Environmental Law Review article, “Nothing for Free: How Private Judicial Seminars are Undermining Environmental Protections,”
Every year more and more federal judges fly to resort locations to attend privately funded seminars. All of their expenses are paid for, including tuition, transportation, food, lodging, and various leisure activities. These trips, which cost thousands of dollars per judge, are privately bankrolled by corporations and foundations. The same funders are simultaneously engaged in federal court litigation touching upon the same topics covered at the seminars. These sponsors are not supporting the seminars out of benevolence; rather, they hope to influence judicial thinking to their benefit. They are paying to have judges attend seminars that stress economic and policy arguments, which, if adopted by the judges, would advance their ideological and pecuniary interests.[34]
These types of economic pressures on judges stress the fabric of our democracy, as they weaken the separation of powers between the branches of government. The same lobbyists that fund the election campaigns of the President and of the Legislature put subtle pressure on judges to interpret the law in ways that benefit their own special interests.[35]
During the late 1970’s, when the USA began to employ strategic global economic policies as mentioned above, and then more so, during the 1980’s, when President Reagan issued Executive Order 12,498, which allowed his administration “to use its oversight power to discourage EPA efforts to regulate the environment,” the Supreme Court promoted a pro-development policy throughout its decisions.[36] The Supreme Court’s treatment of pro-development administrative decisions was significantly more favorable than their treatment of pro-environmental administrative decisions.[37] After Chevron v. NRDC in 1984, the message to environmental groups became ever more pessimistic.
Under the Chevron test, the Court would employ a two-prong analysis. First, if Congress had legislated directly to the issue in controversy, the Court would defer to that intent. If Congressional legislation was not on-point, then the Court would defer to the administrative agency’s decision on the matter-at-issue, unless the decision was clearly “arbitrary and capricious.”[38] Critics of the Chevron standard complain that, given the breadth of statutory language, it is easy for the courts to find some ambiguity in legislative intent, and thus to pass from the first prong to the second prong of the test; regarding this latter prong, the Court has consistently deferred to agency decisions.[39]
This deferential standard certainly makes the Court appear anything but institutionally active. However, it asserts a strong degree of pro-development policy activism in its environmental law decisions. Whether it chooses to consistently defer to some on-point Congressional intent, or whether it chooses to find “ambiguity” in the environmental statute in question, the Court has a significant amount of interpretative flexibility. During the late Twentieth Century, wherever this flexibility allowed the Court to reach pro-development decisions, it almost always did so, regardless of whether it deferred to or flouted Congressional intent. For example, in Baltimore Gas, Chevron, and Chemical Manufacturers, the Supreme Court deferred to agency decisions even though a strong case was made for a clear and contradictory legislative intent.[40] In cases like DuPont, where agencies reached relatively pro-environment decisions, the Court went out of its way to create exceptions, completely unenvisioned by the legislature, which favored developer’s interests.[41] This general pattern of policy activism by the Supreme Court, as well as the Federal Circuit Courts, can be traced in several other major environmental law decisions from the 1980’s to the present.[42]
Such policy activism has had very problematic consequences on the environment. Environmental NGO’s provide plenty of information on their websites that clearly communicate the breadth and depth of the problem. From air to water to soil, our nation suffers from segments of severe pollution.[43]
Moreover, the disparate impact that such pollution has on communities consisting of minority groups is traced by the environmental justice movement. Here, again creating high hurdles for plaintiffs seeking to bring polluters to justice, the US Supreme Court has demanded the showing of “invidious” governmental intent or “egregious” disparate impact to evidence such a claim before any violation of law can be shown, and thus before any remedy can be crafted.[44]
Finally, the standing requirements that the Supreme Court has voiced in its environmental law decisions bar many potential plaintiffs from bringing suit to enjoin the damages waged against their communities’ natural environment by industrial polluters.[45]
When we look closely at the voting record of Supreme Court Justices of the late Twentieth Century, we start to understand their political leanings, specifically regarding their concern for the environment.[46] All of the Supreme Court Justices, save for Justices Douglas and Blackmun, seem dispassionate about the issue of environmentalism and yet appear much more interested in pro-development rights. Although, as previously stated, there have been theories that economic lures and political subterfuge have aligned Justices’ voting patterns with industrial development interests, such motivations are only of secondary concern, as the problems of environmental pollution and disparate impact are of paramount and immediate importance. The average citizen living in any of the myriad industrially-targeted cities such as Oakland, CA or Elizabeth, NJ can attest to the consequences of air, water, and soil pollution upon their lives.
The people of the United States cannot point to a Constitutional provision that guarantees them the fundamental right to good health and a clean environment. However, certain States in our Union have provided just such a right in their case law and constitutions, such as Pennsylvania, Hawaii, Illinois, and Montana. Either through subsequent case law, or through explicit language in the constitutional provisions themselves, these States have indicated that the rights to a healthy environment are self-executing rights. Hawaii and Montana have also relaxed standing requirements for citizens bringing claims for violations of their rights to a clean environment, allowing any person to file suit for any violation of the constitutional provision, regardless of whether the violator is a public or private party.[47] Twenty-one States in the USA have constitutional provisions providing citizens the right to a clean environment.[48]
These States have certainly taken a step in the right direction, and they join an international community of fifty countries, in addition to the signatories of the Stockholm and Rio Declarations, which envision these same rights as ones naturally possessed by all people.[49] While it is certainly productive that the USA avoids the dreadful pitfalls of a great schism between the branches of government, such as that very gap which exists between the Judiciary and the other two branches in India, our nation has much to learn from the Supreme Court of India’s jurisprudence on the issue of environmental law. However, the people and the Courts of India have learned the importance of ensuring the safety of India’s environment through drastic errors that the nation made in its history, leading to terrible events such as that which occurred in Bhopal.
The USA is fortunate to not have such disasters in its history; and our nation is thankfully free of the extreme degree of industrially-, economically- and politically-created pollution and disease that plagues India. Further, our Court systems and administrative agencies certainly are not so under-funded as to fall prey to the type of backlogs and inefficiencies that stifle the courts of India, even if we were to open the proverbial “floodgates” of litigation by way of lowered procedural hurdles and expansion of substantive rights. Our more “enlightened” States, those with pro-environmental constitutional provisions, have certainly continued to function effectively with such protections for their citizens. There is no reason why our federal government cannot do the same.
Prevention being the better part of judgment, it would be wise for the USA to safeguard its people and its environment from such harms by importing such a federal eco-consciousness from India. If the USA were to amend the Constitution to create a self-executing right to good health and a clean and safe environment, to clean air, water, soil, flora, and fauna; and if this nation were to relax standing rights in environmental law cases, the federal government would not only bring greater significance to the Fifth and Fourteenth Amendments of the US Constitution, it would not only follow the precedents set by the international community and by twenty-one of its States, but it would also dignify a natural right in its citizenry that has been wantonly or intentionally missing for too long.
ENDNOTES
[1] I, Ali Ebrahimzadeh, am a lawyer focusing on the ethically driven, intelligent, and responsible practice of law in the areas of Business, Property, Family, Education Law, Criminal Defense, and Arts and Leisure Law.
[2] The World Factbook Online, www.constitutions.com.
[3] World Health Organization, South-East Asia, http://w3.whosea.org/cntryhealth/india/.
[4] World Health Organization, South-East Asia, http://w3.whosea.org/cntryhealth/india/, page 4.
[5] Praful Bidwai, “Making India Work – For the Rich,” multinationalmonitor.org/hyper/mm0795.04.html.
[6] Business Week Online, April 18, 2005,
www.businessweek.com/magazine/content/05_16/b3929068.htm?chan=gb
[7] See FN 4
[8] Author’s note: To assist the reader’s comprehension of the magnitude of this disaster, it is sobering to note that the Bhopal deaths were roughly eight times the number of deaths that occurred as a result of the 9/11 World Trade Center attack. This industrially-created, politically-abetted, calamity certainly puts a different face on the body of eco-terrorism. As Bob Marley sang in Zimbabwe, “Soon we will find out who is the real revolutionary . . .”
[9] Amnesty International, November 29, 2004, Clouds of Injustice: Bhopal Disaster 20 Years On,
http://web.amnesty.org/library/Index/ENGASA200152004?open&of=ENG-IND
[10] See FN 4
[11] See FN 7
[12] President of India, Homepage, http://presidentofindia.nic.in/
[13] S. Dam, “Green Law for Better Health”, 16 GEOIELR 593 at 598. Summer 2004
[14] M. Galanter and J. Krishnan, “Bread for the Poor,” 55 HSTLJ 789. March 2004.
[15] J.P. Sathe, “Judicial Activism: The Indian Experience,” 6 WAUJLP 29 at 43, 50, 51. 2001.
[16] See FN 13, 6 WAUJLP 29 at 55, 56, also citing Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
[17] J. Cassels, “Judicial Activism and Public Interest Litigation in India,” Jackson and Tushnet’s
Comparative Constitutional Law (1999), p. 653. Also see J. Skelly Wright, “The Role of the Supreme Court in a Democratic Society – Judicial Activism or Restraint?,” 54 Cornell L. Rev. 1 at 5,6. 1968. Justice Wright states, “But whatever one may think of the Court’s attempts to mitigate the effects of its institutional incapacities, what is clear about these incapacities is that, where relevant, they counsel deference to the legislature but do not require it. Where the choice is between the Court struggling alone with a social issue and the legislature dealing with it expertly, legislative action is to be preferred. All too often, however, the practical choice has been between the Court doing the job as best it can and no one doing it at all. Faced with these alternatives, the Court must assume the legislature’s responsibility. If the legislature simply cannot or does not act to correct an unconstitutional status quo, the Court, despite all its incapacities, must finally act to do so. For “nature abhors a political vacuum as much as any other kind,” and if the legislatures do not live up to their constitutional responsibilities, the Court must act to fill the vacuum.”
[18] M.P. Singh, “Securing the Independence of the Judiciary,” 10 INICLR 245 at 253. 2000. Also, See
Articles 129-144 of the Indian Constitution.
[19] T. C. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440; and S. P. Sathe, “Avoidance of Premature
Constitutional Questions by the Supreme Court,” in YEARBOOK OF LEGAL STUDIES 23, 353-55,
(Madras ed., 1975).
[20] R. Moog, “Activism on the Indian Supreme Court,” 82 JUDICATURE 124 at 125. Nov/Dec 1998. The author notes, “The framers of India’s constitution never intended to have a Supreme Court so active and so deeply involved in political issues as it is today. What they wanted, according to scholar/lawyer Rajeev Dhavan, was “an independent, but relatively harmless judiciary,” and one that was ultimately subordinate to the executive/legislature. During the Constituent Assembly debates, Jawaharlal Nehru made this position unambiguously clear: “No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way.””
[21] Azad Rickshaw Pullers, A.I.R. 1981 S.C. 14; Vishal Jeet v. Union of India, A.I.R. 1990 S.C. 1412;
Kishen v. State of Orissa, A.I.R. 1989 S.C. 677; Laxmi Kant Pandey v. Union of India, A.I.R. 1987 S.C.
232.
[22] Id.
[23] Bandhua Mukti Morcha v. India, A.I.R. 1984 S.C. 802.
[24] See FN 13, 6 WAUJLP 29 at 74. Also see excerpts of Justice Iyer’s opinion in Mumbai Kangar Sabhha
v. Abdulbhai, and of Chief Justice Bhagwati’s opinion in S.P. Gupta v. Union of India, in J. Cassels,
“Judicial Activism and Public Interest Litigation in India,” Jackson and Tushnet’s Comparative
Constitutional Law (1999), p. 652.
[25] R. Moog, “Activism on the Indian Supreme Court,” 82 Judicature 124 at 128 (November/December
1998).
[26] Id. FN 15 at 291, 292.
[27] S. Dam, “Green Laws for Better Health,” 16 GEOIELR 593 at 601-605. Summer 2004. Here, Mr. Dam specifically outlines the Pollution Control Boards’ inefficient implementation of environmental remedies handed down by India’s Courts. Also see A. Rosencranz and M. Jackson, “The Delhi Pollution Case,” 28 CLMJEL 223 at 233-235. 2003. Mr. Rosencranz and Mr. Jackson address how governmental agencies resist effectuating the Court’s remedies to environmental problems due to economic shortfalls in those agencies, in addition to policy disagreements with the Court. This constant power-play between the Court and the legislative and enforcement bodies of India stagnates any true progress in the plight of India’s citizens. Specifically, in the “Delhi Pollution Case,” in 1998, the Court ordered that the entire bus fleet of Delhi convert from lead-based gas to Compressed Natural Gas (CNG) by 2001. The Court envisioned making a similar order to the cities of Bombay, Calcutta, and Madras. Of course, this order to Delhi, alone, was never effectuated, as it required a huge amount of unavailable funds and much political agreement from the implementing agencies, which also was not forthcoming. To think that such an order would be followed in the other cities would be foolish.
[28] See J. Cassels, “Judicial Activism and Public Interest Litigation in India,” Jackson and Tushnet’s Comparative Constitutional Law (1999), p. 657, 658.
[29] J. Krishnan, “Professor Kingsfield Goes to Delhi,” 46 AMJLH 447 at Appendix. October 2004.
[30] S. Susman, “Distant Voices in the Courts of India,” 13 WIILJ 57 at 84-86. Fall 1994. Ms. Susman discusses the paternalism involved in Public Interest Litigation in India, specifically where public interest lawyers and judges work together to process complaints and craft (and enforce) remedies without sufficient input from the victims in whose name the petitions are filed.
[31] See FN 23, 16 GEOIELR 593 at 609.
[32] See FN 23, 28 CLMJEL 223 at 254, citing Thomas Bailey & David Kennedy, The American Pageant: A History of the Republic 267 (12th ed. 2002).
[33] US Info, Foreign Trade and Global Economic Policies, usinfo.state.gov/products/pubs/oecon/chap10.htm
[34] 25 HVELR 405 at 406, 407. 2001.
[35] Id. The authors continue: “We reviewed the financial disclosure forms of every federal judge filed from 1992 through 1998. This research confirmed that the marketplace of privately funded judicial education is dominated by pro-market, anti-regulatory seminars offering a single and often unchallenged line of reasoning in areas of law with many competing views. Indeed, the three organizations hosting the most trips– the Law and Economics Center (“LEC”), the Foundation for Research on Economics and the Environment (“FREE”), and Liberty Fund (collectively the “Big Three”)– share a similar libertarian, free market ideology. . . . Two notable examples illustrate this connection between seminar attendance and judicial rulings. In a very high-profile case, a judge ruled one way, attended a seminar, and upon his return, switched his vote to a position that agreed with his newly acquired “education.” . . . A second case shows how industry is trying to impact ongoing litigation through the seminars. Texaco was FREE’s largest corporate donor between 1997 and 1999, contributing $125,000 over that three-year period. Texaco is also a frequent defendant in environmental cases, such as Aguinda v. Texaco, a $1 billion tort claim seeking recovery for extensive pollution Texaco caused in Ecuador’s rainforests. The plaintiffs in Aguinda recently filed a recusal motion after learning that the presiding judge had attended a FREE seminar where Alfred DeCrane, former CEO of Texaco and a potential witness in the case, gave a lecture entitled “The Environment: A View from the Corner Office.” . . . It is impossible to prove that any trip impacted any particular judge’s ruling in any specific case. Nonetheless, the correlation between seminar attendance and judicial activism provides strong support for the conclusion that the judiciary should ban privately funded judicial education. At a minimum, the private seminars create an intolerable appearance of impropriety. As Representative Zoe Lofgren (D-Cal.) put it so plainly, “there is nothing more damaging to the citizens’ faith in the country and due process of law than the belief, even if inaccurate, that those who are entrusted to judge have been influenced outside of the court through financial connections one way or the other.””
[36] R. Levy and R. Glicksman, “Judicial Activism and Restraint in the Supreme Court’s Environmental Law Decisions,” 42 VNLR 343 at FN 109. March 1989.
[37] Id. at 361-363.
[38] Chevron USA v. NRDC, 467 US 837 at 841-843. 1984.
[39] See FN 32, 42 VNLR 343 at 374, 375.
[40] Id. at 421.
[41] Id. at 383, 384.
[42] Id. at 421, 422. The authors continue, “Moreover, when the Court believed that agencies had gone too far in protecting environmental interests, as in Benzene, it invoked constitutional principles reminiscent of substantive economic due process to block the agency’s action. Similarly, the Court has employed its perception of the congressional desire to balance environmental protection and economic efficiency to reject supplemental remedies in the face of strong evidence of congressional intent to preserve and foster such remedies. Indeed, the Court has taken virtually every opportunity to discourage supplemental remedies, whether by exercising institutional restraint to reject federal remedies in cases such as Milwaukee II, or by exercising activism to strike down remedies created under state law as in International Paper. Similarly, the Court has run roughshod over Congress’s desire to facilitate such remedies through the reimbursement of attorney’s fees. Finally, in Vermont Yankee the Court issued a ringing endorsement of institutional restraint in rejecting the judicial imposition of procedural opportunities in agency proceedings to benefit environmental interests; yet in Duke Power and Adamo Wrecking it ignored the institutional restrictions on its own power in order to reach pro-development results on the merits.” Also See NY v. USA, 505 US 144 (1992), where the Supreme Court’s decision came down against attempts to rid New York of low-level radioactive waste; US v. Wilson, 133 F.3d 251 (4th Cir. 1997), where the Fourth Circuit ruled that the CWA does not prohibit pollution of wetlands that lack a surface connection to interstate waters; US v. Plaza Health Labs., Inc., 3 F.2d 643 (2d Cir. 1993), where the Second Circuit stated that an individual who dumps toxic and hazardous wastes into interstate waters does not qualify as a “point source” under the Clean Water Act; Atlantic States Legal Found. V. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1994), where the Second Circuit ruled that the discharge of pollutants not listed in the polluter’s permit are permissible; Tuna/Dolphin II Decision, in which the GATT Council of the USA ruled that, under the GATT, one GATT nation may not force another via trade sanctions to comply with or alter its own environmental policies in its own jurisdiction; Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999), where the Fifth Circuit decided that federal courts lack subject-matter jurisdiction over claims arising out of environmental damage caused by a US company in its work abroad; and finally, Cetacean Community v. Bush, 386 F.3d 1169, (9th Cir. 2004), in which the Ninth Circuit decided that animals lack standing to file suit for violations under the Endangered Species Act or other environmental statutes.
[43] Scorecard at www.scorecard.org/index.tcl; Human Rights Watch at www.hrw.org; GreenPeace at
www.greenpeace.org; The Sierra Club at www.sierraclub.org; Earth First at www.earthfirst.org; and The
Natural Resources Defense Council at www.nrdc.org. Conversely, good luck trying to find anything
wrong with the environment of the USA on EPA’s webpage!
[44] Village of Arlington Heights v. Metropolitan Housing Devel. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Also see Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125 (1960), Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886), and Justice Stevens’ concurrence in Washington v. Davis, 426 U.S. at 254, 96 S. Ct. at 2054.
[45] Lujan v. Defenders of Wildlife, 405 US 727 (1972), in which the Supreme Court required injury-in-fact, traceability, redressability, and potentially a statutory right-of-action to achieve standing to bring suit. Also see “Standing and Rights of Action in Environmental Litigation,” SK094 ALI-ABA 1 at 23-25. June 22-25, 2005. This ALI-ABA article provides case law demonstrating that dictum in Lujan, which suggested that procedural injury would also be sufficient to show injury in the standing test, has been clearly contradicted in subsequent cases.
[46] R. Lazarus, “Restoring What’s Environmental about Environmental Law in the Supreme Court,” 47 UCLALR 703 at 721-734. February 2000. In a thorough review of such voting patterns, Prof. Lazarus tabulated the Justices’ votes on a scale of one hundred points by considering whether each Justices’ vote on their share of the one hundred most famous environmental law cases was pro-environmental or anti-environmental, granting one weighted point (based on proportion of cases heard) for each pro-environmental vote made by that Justice. Prof. Lazarus’s tabulation of scores was as follows: Justice Douglas, who unfortunately retired from the Court in 1975, scored a perfect 100; Justice Blackmun scored a 93.5; then, far afield, Justices Ginsburg, Stevens, Brennan, Marshall and Souter all scored in the 50’s and 60’s; Justices Rhenquist, Burgur, O’Connor, and Powell scored in the 30’s; Justices Kennedy and Thomas were in the 20’s; and Justice Scalia bottomed out at 13!
[47] J. Eurick, “The Constitutional Right to a Healthy Environment,” 11 INLEGP 185 at 202-207. Spring 2001.
[48] Id. at FN 4.
[49] Id. at 185.