Lawyer Training Workshop
Public Interest Environmental Law
Medawala, India
October 17th-21st, 2003
Workbook of Case Materials
This workshop has been funded in part by Grant No. S-ECAPRE-03-GR-026 (DD)
of the United States Bureau of Educational and Cultural Affairs
Page 89 of 91
Page 1: TABLE OF CONTENTS
Page 3: MOOT COURT RULES
Chapter 1: Hypothetical Case # 1 (Industrial Pollution)
Page 5: Client letter (A Plea for Help)
Page 6: Environmental Research Institute Report: Restoration of Environmental Quality of the Affected Area Surrounding Village B Due to Past Waste Disposal Activities (selected parts)
Chapter 2: Hypothetical Case # 2 (Mineral Resource Extraction)
Page 9: Client Letter (A Plea for Help)
Page 10: Mineral Investment Agreement (selected paragraphs)
Page 15: Comments of the National Academy of Sciences on the Proposed Potash Project
Page 18: Newspaper article “Exploitation of the Potashpura Potash Deposit”
Chapter 3: Hypothetical Case # 3 (Forest Protection)
Page 21: Client letter (A Plea for Help)
Page 22: Lease Deed to … June 25, 2000.
Chapter 4: Legal Materials – Constitutional Provisions
Page 23: Constitution of Bangladesh (selected provisions)
Page 23: Constitution of India (selected provisions)
Page 24: Constitution of Nepal (selected provisions)
Page 25: Constitution of Pakistan (selected provisions)
Page 25: Constitution of Sri Lanka (selected provisions)
Chapter 5: Legal Materials – Statutory Provisions
Page 27: Bangladesh – Environment Conservation Act, 1995 (selected sections)
Page 28: Bangladesh – Factories Act, 1965 (selected sections)
Page 28: Bangladesh – Environment Conservation Rules, 1997 (part relating to Standards for Waste from Industrial Units or Projects Waste)
Page 32: India – Environmental (Protection) Act, 1986 (selected sections)
Page 33: India – The Water (Prevention and Control of Pollution) Act, 1974 (selected sections)
Page 36: India – Environment Impact Assessment Notification (selected sections)
Page 39: India – Environment (Protection) Rules, 1986 (selected sections)
Page 44: India – Hazardous Wastes (Management and Handling) Rules, 1989 (selected sections)
Page 44: India – The Mines and Minerals (Development and Regulation) Act, 1957 (selected sections)
Page 45: India – The Mineral Conservation and Development Rules, 1988, 2000 (Selected sections)
Page 45: India – Forest (Conservation) Act, 1980 with Amendments Made in 1988 (selected sections)
Page 46: India – The Indian Wildlife (Protection) Act, 1972, amended 1993 (selected sections)
Page 50: India – The Wild Life (Protection) Amendment Act, 2002 (selected sections)
Page 52: Nepal – Environment Protection Act, 1997
Page 53: Nepal – National Parks and Wildlife Conservation Act, 1973 (selected sections)
Page 54: Pakistan - Pakistan Environmental Protection Act (PEPA), 1997 (selected sections)
Page 58: Pakistan – National Environmental Quality Standards for Municipal and Liquid Industrial Effluents
Page 61: Sri Lanka – National Environmental Act, 1980, 1988 (selected sections)
Page 65: Sri Lanka – Criminal Procedure Code, (part relating to Public Nuisance)
Page 67: Sri Lanka – General Standards for Industrial Waste Water (Effluents) Discharged into Inland Surface Waters (After Treatment)
Page 67: Sri Lanka – The Mines and Minerals Act, 1973 (with 1981 and 1992 amendments)
Page 70: Sri Lanka – Fauna and Flora Protection Ordinance (selected Sections)
Chapter 6: Legal Materials – Court Judgments
Page 73: Bangladesh – Farooque v Government of Bangladesh (decided July 1, 1996) (selected parts)
Page 75: Bangladesh – Farooque v Government of Bangladesh (decided Juy 25, 1996) (selected parts)
Page 77: India – M.C. Mehta v.Union of India, WP 12739/1985 (Decided December 20, 1986) (selected parts)
Page 78: India – M.C. Mehta v Union of India and Others, WP 3727/1985 (decided September 22, 1987) (selected parts)
Page 78: India – Subhash Kumar v State of Bihar, (decided January 9, 1991) (selected parts)
Page 78: India – ICELA v. Union of India, WP 664/1993 (decded April 18, 1996) (selected parts)
Page 79: India – M.C. Mehta v. Kamal Nath, WP 182/1996 (decided December 13, 1996) (selected parts)
Page 80: India – A.P. Pollution Control Board v. Nayudu, (decided January 27, 1999) (selected parts)
Page 81: India – M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others (decided July 26, 1999) (selected parts)
Page 82: India – T.N. Godavarman Thirumalpad v Union of India and Others (decided October 30, 2002)
Page 84: Nepal -- LEADERS v. Godavari Marble Industries and Others (decided October 31, 1995) (selected parts)
Page 85: Pakistan -- Zia v. WAPDA, (decided 1994) (selected parts)
Page 86: Pakistan -- West Pakistan Salt Miners Labour Union v. the Director, Industries and Mineral Development (decided July 12, 1994) (selected parts)
Page 86: Sri Lanka – Environmental Foundation Limited vs. Ratnasiri Wickramanayake, (decided December 17, 1996) (selected parts)
Page 87: Sri Lanka – Jayawardena v. Akmeemana Pradeshiya Sabha, (decided September 24, 1997) (selected parts)
Page 87: U.S. – Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) (selected parts)
Page 88: U.S. – Sierra Club v. Morton, 405 U.S. 727 (1972) (selected parts)
Lawyer Training Workshop
Public Interest Environmenta Law
Moot Court Rules
1. Registration Procedure
All the young lawyers participating in the workshop are required to take part in the Moot court exercise.
2. Team Composition
2.1. The participants at the workshop will be divided into three teams. Each team shall consist of five/six members. The organisers will constitute the three teams.
2.2. All members of a team may present oral arguments. The Team must decide how to divide the allocated time. Some members of the team may choose not to present oral arguments. However, at least three members of the team MUST present oral arguments on behalf of the team. All members of the team are required to actively participate in drafting the pleadings and written submissions and in preparing for the oral arguments.
3. Moot Court Dates
The Moot Court will be held on the date and time set out in the workshop programme. The notified schedule of the Court will be strictly applied.
4. Moot Court Procedure
4.1 The written pleadings, written submissions and oral arguments shall be based on the three case material provided in the workbook prepared for the workshop. Each team will be allocated a case.
4.2. All three team are required to prepare and present to the Moot Court:-
4.2.3. Pleading (a document initiating court proceedings such as a Plaint, Complaint, Petition, Information etc.);
4.2.4. Written Submission outlining the factual and legal arguments relied on; and oral arguments in support of their case.
4.3. All three teams will act as lawyers for the party initiating proceedings in the Moot Court (i.e. Plaintiff/Petitioner/Complainant/Informant etc.). Senior Counsel and Resource Persons attending the workshop will act as lawyers for the party called into court as a party to the proceedings (defendant/Respondent/Accused/etc.) The lawyers for the party called into court will also prepare in sketch form a Pleading and Written Submission replying to those of each team.
4.4. The Moot Court shall be presided over by a bench of two to five Judges. The Judges will be invited from among sitting and retired judges. Senior lawyers and resource persons may also be invited to be a Judge. The organisers will do their best to constitute benches that reflect the different jurisdictions of the region. The bench for each case may be different.
4.5. Each team shall have 45 minutes each, wherein each speaker shall have only 20 minutes each and 5 minutes shall be reserved for rebuttal by each team. One speaker or both speakers dividing the 5 minutes’ time between them may present the rebuttal for either team.
4.6. The bench constituted for each case is not required to (but may, if they wish to) pronounce a judgement declaring an outcome of the moot. The participating judges will however, express their opinions on the strength/weaknesses of the pleadings, written submissions and oral arguments of each team. The judges may also make suggestions that they feel may help participants in improving their advocacy skills.
5. Code Of Conduct & Language of the Court
5.1. Participants are required to conduct themselves within the highest standards of ethics applicable to professional conduct in their respective jurisdictions.
5.2. The Dress Code shall be dark suit or formal dark shalwar or national dress for men and light uni-coloured saree or shalwar or long gown for women. Optionally participants may wear the professional dress prescribed for court appearances in their respective jurisdictions.
5.3. The proceedings of the Moot Court shall be in English.
6. Pleadings & Written Submissions
6.1. The Pleading and Written Submission should reach the Registrar by the deadline specified on the workshop programme.
6.2. Each team will be given access to a computer. The Pleading and Written Submission must be printed using Times New Roman font of 11-14 point font size.
6.3. Once the pleading and written submission is submitted the teams will not be allowed to make any amendments to the same.
6.4. The Pleading and Written Submission should be printed only on one side of A4 size paper with 1 inch margin on all sides and numbered on the bottom right side of the page.
6.5. The Pleading should not exceed 4 pages. The Written Submission should not exceed 4 pages.
6.6. The Pleading (maximum 4 pages) should contain:
6.6.1. A Caption setting out the name of the Court, details of the parties, the date of filing, an indication of the nature of the proceedings and an appropriate salutation to the Court.
6.6.2. An indication of the type of pleading (i.e. Plaint/Petition/ etc)
6.6.3. Statement of jurisdiction.
6.6.4. A statement of relevant facts. Where appropriate references to documents relied on may be made
6.6.5. A Statement of laws relied on, only where appropriate.
6.6.6. Prayer or request for relief.
6.7. The Written Submission (maximum 4 pages) should contain:
6.7.1. Statement of issues of fact and law.
6.7.2. Summary of arguments relied on.
6.7.3. List of legislation and precedents relied on.
6.8. There shall be no Copyrights in the pleadings and Written Submissions and all authors waive those rights by participation in the Moot.
HYPOTHETICAL CASE #1
A PLEA FOR HELP
October 17, 2003
XYZ
Advocate, High Court of ----
Singh & Associates
Dear Sir or Madam:
I am writing to let you know of a problem afflicting us. We live in the village of B___. For many decades, our families have used our lands for grazing cattle, growing crops and fruit trees, and living in harmony with nature.
Several years ago, a Company set up a factory that, for a long period, manufactured dyes and dye intermediates. The Company dumped solid waste from the factory into six places nearby its premises. It allowed effluent from the factory to run out over the land. Later, the Company set up factories that manufacture
The Company is creating havoc with our lives. Wastes from the Company’s factories percolated into our groundwater, making it highly acidic and dark coloured. About 80 wells have totally become polluted and every week a few new wells down the aquifer start showing signs of pollution. About 20,000 of us are being forced to drink highly contaminated water.
In January, we demonstrated before the Collector and gave him a representation /memorandum about the serious situation being caused due to water pollution. Also in January, water samples were taken for tests/analysis by the University of R____. It was found that the runoff was highly acidic (pH 2.3 to 2.5) and the run off was found to be extremely high in total dissolved solids (18,500 – 24,800 mg/1).
In February, we demonstrated at the gate of the factory and presented a memoranda to the Prime Minister and Chief Minister during their visit to our district.
In March, the national press highlighted the serious problems of air and water pollution in B___, but to no avail. An article under the caption ‘Pollution Problems in B____’ appeared, stating that our village has become a victim of serious pollution: thousands of fruit bearing trees have died and hundreds of cattle have perished after drinking polluted water.
In response to our inquiries, the Minister for the Environment and Forests admits that effluents from the Company’s plant contains H-acid and large quantities of organic pollutants that can affect the vegetation. The State Environmental Agency has refused to give its consent to the Company that is making H-acid and recommendation has been to the State Government to issue directions for the closure of the factories. No steps to stop pollution have been taken by the Government or the Industry.
In June, the Central Government wrote a letter to the local Department of Environment in which it was stated to take immediate action to have as much cleaning as possible of the soil and sub-soil material in the factory area. Also in June, we sent a letter to the Central and State Governments objecting to the siting of the factory. No answer has been received to this time.
A fact-finding team from the Environmental Research Institute came to visit us earlier this year. We are providing under this cover a copy of their report that describes the circumstances we are facing.
We are suffering badly. Pollution keeps spreading. About 200 cattle have died. Hundreds of fruit bearing trees have withered and crops have seriously affected. We want to be made whole. Could you please help us!
Environmental Research Institute Report
“Restoration of Environmental Quality of the Affected Area Surrounding Village B____ Due to past Waste Disposal Activities”
… Solid wastes generated from H-acid manufacturing process are gypsum sludge produced during the neutralisation of acidic solution with lime after nitration stage (around 6 tonnes/tone of H-acid manufactured) and iron sludge produced during the reduction stage (around 0.5 tonnes/tonne of H-acid manufactured). Gypsum sludge contains mostly calcium sulphate along with sodium salts and organics. Iron sludge constitutes untreated iron powder, besides ferric salts and organics.
It is estimated that, for each tonne of H-acid manufacture, about 20 cubic meters of highly corrosive wastewater was generated as mother liquor, besides the generation of around 2 cubic meters of wash water. The mother liquor is characterised by low pH (around 2.0) and high concentration of total dissolved solids (80-280 g/L). High COD of the waste water (90 g/L) could be attributed to organics formed during various stages of manufacture. These include naphthalene trisulphonic acid, nitro naphthalene sulphonic acid, Koch acid and H-acid, besides several other intermediates.
The company is generated 8250 cubic meters of wastewater and 375 tonnes of sludge per year. The company has handled these wastes in the following manner
- From the outset, the Company deposited its sludge into six nearby pits.
- A majority of the sludge brought back from disposal sites located outside the factory was transferred inside a covered shed.
- The sludge lying in the plant premises was entombed in an underground pit. It may be mentioned that only 720 tonnes of sludge out of an estimated quantity of 2440 tonnes could be entombed as the capacity of the underground tanks provided by the industry for the purpose was only to that extent.
- The remaining sludge and sludge mixed soil were, however, present in the plant premises as these could not be transferred into underground tanks. It has also been observed that only sludge above the soil was removed from the six sites and transferred to the plant site. Subsurface soil of these sites appears to have been contaminated as the soil has reddish colour akin to that of the sludge.
- The Company also operates a fertilizer plant and a sulphuric acid plant located near the factory where H-acid was earlier manufactured. Acidic wastewater (around pH 1.0) from these units was flowing over the abandoned dumpsites. This leaches the sludge-soil mixture at the six dumpsites and the contaminated water flows by gravity towards east and finds its way into a nallah flowing through the compound and conveys the contaminated water to an irrigation canal.
Field surveys showed that no crops were coming in the fields particularly in low lying areas. On some elevated areas, crops like jowar, maize were growing; however the growth and yield were very poor. Even trees like eucalyptus planted in contaminated fields show leaf burning and stunted growth. Many old trees which were badly affected due to contamination are still growing under stress conditions as a result of soil contamination. The topsoils at the old dump sites outside the plant premises are still contaminated and require decontamination before the land is used for other purposes.
The entire contaminated area comprising of 350 ha of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practiced by the Company.
It was also observed that the Company has not provided adequate effluent treatment facilities and the wastewaters (pH, 1.5) from the existing plants (sulphuric acid, fertilizer, and oil extraction) are being discharged, without treatment, on land within the plant premises. This indiscriminate and willful disposal activity is further aggravating the contamination problem in the area. Acidic effluent leaches the pollutants from the dumped sludge and the contaminated soil and facilitates their penetration through the ground and thereby increasing the concentration of sulphates and dissolved solids in groundwater.
The Company has shown scant respect for the environment. Not only this, the management continues industrial activity producing obnoxious waste waters and dumping the same without any treatment, contaminating land and ground water without any concern for ecology and public health. It is necessary that the provisions of relevant legislations are imposed on the industry to avoid environmental damage and harm to public welfare.
Compensation should be paid under two heads, viz., (a) for the losses due to damage and (b) towards the cost of restoration of environmental quality. The cost of damage to be disbursed to the affected villagers is estimated at Rs. 342.8 lakhs and remediation of impacted well waters and soil at Rs. 3738.5 lakhs. This cost needs to be borne by the management of the industry.