Environmental Law

Meaning and origin

The public trust doctrine holds that certain natural resources, such as air, water, forests, rivers and the foreshore, are held by the State as trustee for the public, who are the beneficiaries. The State may not give them away, privatise them or allow their destruction for private benefit. The doctrine goes back to Roman law (res communes) and English common law, was developed by Prof. Joseph Sax in the United States, and was adopted in India in M.C. Mehta v. Kamal Nath (1997).

Position in Nepal

Nepal has no single statute on the doctrine, but its ideas are present in:

• Art. 30 of the Constitution (right to a clean and healthy environment) and Art. 51 (policies on conservation and sustainable use of natural resources);
• the Environment Protection Act, 2076 and laws on forests, water resources and national parks;
• Supreme Court decisions beginning with Suray Prasad Sharma Dhungel v. Godavari Marble Industries (1996), which treated the environment as a public concern, accepted public interest litigation and obliged the State to protect it.

Role of the doctrine

1. Limits State discretion - leases, licences and concessions over forests, rivers or public land can be reviewed and set aside if they harm the public interest.
2. Imposes a positive duty on government to protect, not only refrain from harming, natural resources.
3. Basis for standing - because the public are beneficiaries, any citizen or organisation can bring a public interest writ.
4. Intergenerational equity - resources are held for present and future generations.
5. Supplies a standard of review - courts ask whether a decision is consistent with trusteeship.

Importance

It supports sustainable development, curbs corruption and arbitrary allocation of public resources, strengthens civic participation, and gives environmental law a moral and legal footing that goes beyond individual property rights.

Limits

The doctrine is vague about which resources are covered, courts must avoid usurping policy decisions, and enforcement depends on administrative capacity.

Conclusion. The public trust doctrine is a useful tool for protecting and promoting the environment in Nepal. Used with Art. 30 and the Environment Protection Act, it makes the State answerable as trustee of the nation's natural wealth.

Constitutional and legal basis

• Treaty Act, 2047, s. 9: where a treaty to which Nepal is a party conflicts with domestic law, the treaty provision prevails as if it were national law. Treaties are thus directly relevant in courts.
• Constitution of Nepal (2072): Art. 30 (right to a clean environment) and Art. 51 (policies on environment and biodiversity), and Art. 51 also directs the State to give effect to international obligations.

Major instruments and Nepali implementation

Principles accepted from Rio (precaution, polluter pays, EIA, sustainable development) appear in the Environment Protection Act, 2076.

Case law

• Suray Prasad Sharma Dhungel v. Godavari Marble Industries (1996): the Court read the right to life as including a clean environment and used sustainable development and the need for environmental impact assessment as standards.
• Padam Bahadur Shrestha v. Office of the Prime Minister (2018): the Court directed the government to take measures against air pollution, citing the right to a clean environment and Nepal's international commitments.
• Writ decisions on forest and protected area encroachment have also referred to the Rio Declaration and the CBD.

Evaluation

Strengths: supportive Constitution, the Treaty Act's supremacy rule, and an active judiciary. Weaknesses: limited enforcement capacity, scarce finance and technology, overlapping institutions across the three tiers of government, weak monitoring and poor public awareness; many standards remain only in policy documents.

Conclusion. Nepal has formally adopted most international environmental standards, but implementation is partial. Stronger institutions, funding and judicial follow-up of orders are needed.

The case

Suray Prasad Sharma Dhungel v. Godavari Marble Industries and others (Writ No. 35 of 1992, decided by the Supreme Court in 1996) is the first major environmental case in Nepal.

Facts. The marble industry quarried and processed marble at Godavari, near Kathmandu. The petitioner, an advocate, alleged that quarrying, blasting and dust were destroying forest, polluting water and air, damaging the health of residents and harming the area's biodiversity and water sources. He asked the Court to stop the operation.

Decision. The Court recognised the issue as one of public concern and the clean environment as a part of the right to life. It did not simply close the industry but issued directive orders for compliance with environmental safeguards and for government supervision of the operation.

Significance for environmental law

1. Right to a clean environment - at that time (1990 Constitution) there was no express right; the Court derived it from the right to life. It is now express in Art. 30 of the Constitution of Nepal (2072).
2. Public interest litigation and locus standi - the Court allowed a person not personally injured to sue on behalf of the public, which opened the door to later environmental writs.
3. Sustainable development - it linked industrial development with environmental protection.
4. Environmental impact assessment - it stressed that projects must be assessed beforehand, which influenced the EIA provisions in later law and the Environment Protection Act.
5. Judicial activism through directives - courts began giving continuing guidance to the executive.
6. Awareness - it raised the profile of environmental law among lawyers, officials and the public.

Conclusion. The Godavari Marble case turned environmental protection from a policy aim into an enforceable legal concern in Nepal and remains the starting point for the development of environmental jurisprudence.

Constitutional basis

• Art. 30: every person has the right to live in a clean and healthy environment, and victims of environmental pollution or degradation have the right to compensation according to law.
• Art. 51: State policy to prevent environmental harm, use resources sustainably and apply the polluter pays principle.

Statutory standards

1. Environment Protection Act, 2076 and Rules, 2077 - the central law: requires IEE or EIA for proposals; makes it unlawful to pollute beyond prescribed standards; provides for pollution control certificates, inspection, fines and compensation; embodies polluter pays and precaution.
2. Air pollution - national ambient air quality standards, vehicle emission standards and inspection under the Vehicle and Transport Management Act, 2049.
3. Water pollution - Water Resources Act, 2049 prohibits polluting water sources; effluent standards for industries.
4. Solid waste - Solid Waste Management Act, 2068, which makes local levels responsible for collection and disposal.
5. Noise - noise standards and restrictions under environmental rules and local regulations.
6. Industrial pollution - Industrial Enterprises Act and its rules require pollution control measures and standards for effluents.
7. Hazardous substances - controls on pesticides, chemicals and waste.
8. Criminal and civil law - the Muluki Criminal Code, 2074 and the Muluki Civil Code, 2074 contain public nuisance and damage provisions.

Enforcement

The Ministry, provincial and local governments inspect and issue orders; a polluter may be fined, ordered to close or compensate; and a citizen may seek remedies by public interest writ before the Supreme Court or High Court.

Evaluation

The standards are fairly comprehensive in text but weak in implementation, because of limited monitoring, scattered responsibility across tiers, and light penalties.

Conclusion. Nepal has a constitutionally grounded and wide set of pollution standards. Effective enforcement is now the main need.

(a) Principle of environmental impact assessment (EIA)

EIA is the process of predicting and evaluating the likely environmental and social effects of a proposed project before approval, so harm can be avoided or reduced. It is Principle 17 of the Rio Declaration and is part of the precautionary approach. Its steps are screening, scoping, study and report, public consultation, review and approval, and monitoring. In Nepal, the Environment Protection Act, 2076 and Rules, 2077 require an Initial Environmental Examination (IEE) or a full EIA for proposals according to their size and nature, and the project cannot proceed without approval of the report. The Supreme Court in the Godavari Marble case stressed prior assessment of environmental effects.

(b) Polluter pays principle

This principle says the person who causes pollution must bear the cost of preventing, controlling and remedying it, and of compensating the victims, rather than passing it to the public. It is Principle 16 of the Rio Declaration and was developed by the OECD in 1972. In Nepal, Art. 51 of the Constitution directs the State to apply it, Art. 30 gives pollution victims a right to compensation, and the Environment Protection Act, 2076 provides for polluter liability and compensation. In India, Indian Council for Enviro-Legal Action v. Union of India (1996) held the polluter absolutely liable for restoration. The principle provides deterrence and funds for cleanup.

(e) Pulp Mills Case (Argentina v. Uruguay), ICJ, 2010

Argentina alleged that Uruguay authorised two pulp mills on the River Uruguay, shared by the two states under the 1975 Statute of the River Uruguay, without proper notice and consultation, and that they would pollute the river. In 2010 the International Court of Justice held that Uruguay had breached its procedural obligations to inform and consult, but not its substantive obligations to prevent pollution, and it refused to order dismantling of the mills. The Court also held that conducting an EIA is a requirement of general international law where a project may have a significant transboundary harm, and affirmed the duty of due diligence and prevention. The case is important for transboundary projects such as Nepal's shared rivers with India.