Report No. 186

Principle of New Burden of Proof:

The UN General Assembly Resolution of 1982 on World Charter for Nature established this principle. It stated:

"Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature."

EC Law also demonstrates the shift in the burden in the case of use of drugs, pesticides, food products, additives, food stuffs etc. EC's new hazardous wastes lists 200 categories of listed wastes. In US, though the Supreme Court in Industrial Union Department AF.- CIU vs. American Petroleum Institute 448 US at 632-635 (1980) put the initial burden on the regulator, several American statutes have shifted the burden of proo.- as Federal Foods and Drug Act (21 U.S.C. section 348(c) (3) A), The Federal Insecticide, Fungicide and Rodenticide Act (FIFA) (21. USS section 360(a)(4)(B), Marine Mammal Protection Act. (16 USC section 1371) and the ESA. The WTO Appellate body has also applied this principle.

Environmental Impact Assessment is intended to reduce the uncertainties attached to potential impacts of a project.

In the Vellore Case 1996(5) SC 647, Kuldip Singh J observed (see p 658)(para 11) as follows:

"(iii) the 'onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign."

In A.P. Pollution Control Board case: 1999 (2) SCC 718 (at p 734) it was explained that the 'precautionary principle' has led to the new 'burden of proof' principle. In environmental cases where proof of absence of injurious effect of the action is in question, the burden lies on those who want to change the status quo. This is often termed as a reversal of the burden of proof, because otherwise, in environmental cases, those opposing the change could be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden and the party who wants to alter it, must bear this burden.