This paper
is a study on the Polluters Pay Principle and its application to environmental
law and civil liability. Consideration is given to how the principle is
understood with relevance to environmental law and how it may be implemented in
accordance to its interpretation.
Specific
attention is given to the application of this principle from EU and UK
perspective, however, it would not be possible without a detailed analysis on
the conception from its legal, historical as well as international importance.
Introduction
“If anyone intentionally spoils the water of another .... let him not
only pay damages, but purify the stream or cistern which contains the
water....”[1]
The essence
of the above quote has been replicated by the proponents of the Polluters-Pay
Principle; Stewart Bell describes it as a principle where the responsibility
for the production of goods and items, that may result in environmental damage
such as pollution, or be the cause of such harm, as well as taking the steps in
the prevention of such harm, then the cost of this should be on the producer.[2]
Such costs include environmental cost as well as that direct cost to people and
property; this also covers not only remedying damage but also cost incurred in
avoiding pollution.[3]
Legal commentators have often argued that there is no agreed definition to this
principle, nor any precisely defined scope for its implementation and this is
due to the lack of international treaty on its application.[4]
Regional organisation like the EU and OECD, and national authorities, apply it
for their own purposes and subject it to various considerations with overriding
need in favouring depressed economic areas with assistance.[5]
The interpretation of the principle to particular cases and situation remain
open as Philippe Sands points out ... “in relation to the nature and extent of
costs included and the circumstances in which the principle will, perhaps
exceptionally, not apply.”[6]
The polluter-pays principle has practical implications in regards to
environmentally damaging activities in particular those of liability and “the
use of economic instruments, and the application of rules relating to
completion and subsidy.” [7]
[1]
The Dialogue of Plato: The Laws, vol. 4, book 8, section 485(e), translated by
Jowett B, (Oxford: Clarendon
Press: 4th ed. 1953)
[2]
Bell S, McGillivary Environmental Law (Oxford:
Oxford University Press: 2008 7th ed.) p.244
[3]
Ibid.
[4]
Mc Loughlin, Bellinger Environmental
Pollution Control (London: Graham & Trotman/ Martinus Nijhoff: 1996) p145.
[5]
ibid.
[6]
Philippe Sands Principles of
International Environmental Law (Cambridge:Cambridge University Press:2003 2nd ed.) p.280
[7]
Ibid.
The principle in essence is an economic policy for allocating the costs on public authorities responsible for the environmental pollution or damage done by them; moreover, the principle also has the scope for the development of international and national law on liability
for damage.[1] It
is often argued that pollution is often an externality that imposes a social
cost, there is no reflection in its entirety in the private cost of the
polluter, and hence, exceeding more pollution than what is economically
optimal. It is argued that the Polluters Pay Principle is an attempt to make
polluters bear the “real” social cost bringing pollution to the optimal point.[2]
The rationale behind the economic approach to the Polluters Pay Principle is
the “prices of goods (depending on the quality and/or quantity of
environmental resources) reflect, more closely, their relative scarcity and
that economic agents concerned react accordingly”. [3]
The aim of this paper is to consider the civil liability of the
principle to environmental damage, as opposed to direct regulation and economic
incentives. Environmental liability in the context of national and
international liability laws are based on strict liability under which, the
injurer is liable irrespective of the presence or absence of fault or
negligence, only harm must be demonstrated. Furthermore, economic analysis of
strict liability demonstrates efficiency since the injurer internalises the
harm ensuring that the due level of care is taken, though it should be noted
that strict liability is reserved usually for cases involving hazardous
activity, whilst negligence, which may be also considered efficient because the
injurer can be induced to take exactly the specified amount of care and this
amount can be set efficiently.[4]
Nevertheless, it should be noted that negligence is the dominant rule in
tortuous liability.
[1]
Birnie P, Boyle A, Redgwell C International
Law & the Environment (Oxford: Oxford University Press: 2009 3rd ed.) p 322
[2]
Førsund R. Finn., “The Polluter Pays
Principle and Transitional Period Measures in a Dynamic Setting”; The Swedish Journal of Economics, Vol. 77, No.
1, Public Finance:Allocation and Distribution, (March1975), pp. 56-68; http://www.jstor.org/stable/3439327
policies”, C(72) 128, 1972,
Paris, France. Also see, OECD: “The polluter pays principle.
Note on the implementation of
polluter pays principle”, 1974, Paris, France.
Paper No.11781, November 2005, Cambridge, MA USA, http://www.nber.org/papers/w11781
The
proponents of the strict liability rule also focus on “cost internalisation”
that is social cost of an activity is charged to the polluter and this is
parallel with the Polluters Pay Principle.[1] The
rationale for strict liability being better for harm is that of economics and
this is because it is unilateral where the injurer can take due care to prevent
such harm. This is seen in environmental pollution and degradation and
consequently, there is convergence towards using strict liability in cases
environmental pollution and degradation.[2] Nevertheless, what this paper considers is the application of the polluters pay principle in establishing civil liability for environmental damage.
[1]
Bergkamp
Lucas, “Liability and Environment Private
and Public Law Aspects of Civi liability for Environmental Harm in an
International Context”, Draft 10, April 2001
http://papers.ssrn.com/paper.taf?abstract_id=266365
[2]
Shruti Rajagonpalan The Polluter Does Not
Pay Model for Environmental Protection in India www.emle.org
1.1 ENVIRONMENT
If the
environment is recognised as a representation of “the living space, the quality
of life and the very health of human beings, including generations unborn.”[1]Or
simply understanding it to mean complex interrelationship between climatic,
biotic and edaphic factors that “act upon an organism or an ecological
community and ultimately determine its form or survival; the aggregate of
social or cultural conditions that influence the life of an individual or a
community.”[2]Then
it is at least apparent that even without a clear authoritative definition[3]
of the term, the environment and the symbiotic relationship with human beings
are “at the centre of concerns for sustainable development.”[4]Nature,
ecosystem, natural resources, wildlife and so on are thus of concern to
International law makers primarily for the value to humanity.
The environment is a fragile eco-system that
sustains life in the elemental description (and the emotive empathise) from
providing the air that every living creature breathes, to the “clean” water
that is drunk, to the water that is used for agriculture amongst other things,
which produces for food that is consumed by all living creatures. It is part of
the cycle of life that is dependent on each other and requires protection.[5]
The natural resources that the earth contains has been exploited at an
unprecedented rate since the industrial revolution,[6]
with the growth in population and urbanisation, the advancement in both transportation,
and agricultural
production as a consequence, has led to the increase demand in energy
consumptions.
[1] Nuclear
Weapons Advisory Opinion, ICJ Reports (1996) 241-2, para29.
[3]
Environmental Protection Act 1990 section 1, legally defines the Environment as
“All or any of the following media, namely air, water, land and
air includes air within buildings or any other natural or man-made structure
above and below ground”.
[5]
Environmental protection is essentially anthropocentric: the key drive for the
right to a clean environment emanates from Principle 1, of the 1992 Rio
Declaration which states “Human Beings
are the centre of concerns for
sustainable” The preamble to the 1972 Stockholm Declaration stated “Man is both creature
and moulder of his environment, which gives
him physical sustenance and affords him the opportunity for
intellectual, spiritual,
moral and social growth”.
Such
progress comes at a cost to the environment and to the limited natural resources
that are not sustainable at the current rate of consumption, and this is not
just stating the obvious such as “peak oil”[1]
where dwindling oil supply meets expediential demand for energy, but over
fishing and climate change
has been highlighted in recent years as a major cause for concern. The cost of
maintaining a better quality of life and living standards in a free market
economy such as those in North America and Western Europe, or the aspiration to
achieve those goals as an economy in the developing nations of the African,
Asian and Latin American continents has put more strain on the resources and
often at the expense of nature and the environment, on factor that all this has
in common to the detriment of the environment is pollution.
1.2 POLLUTION
Martin Holdgate[2]
states what he refers to as a restricted but an evolved definition of pollution:
“The introduction by man into the environment of substance or energy
liable to cause hazards to human health, harm to living resources and
ecological systems, damage to structures or amenity, or interference with
legitimate uses of the environment”[3]
From
the above, it can be construed that it is exploitation and the demand for
energy and substances associated with energy production that are the main
culprits that cause pollution; and it is man who is the creature of this source
or sources removing the natural input of this substance, thus “pollution is an
increment added by man to biogeochemical cycles.”[4]
[2] Martin W. Holdgate A Perspective of Environmental Pollution (Cambridge: Cambridge
University Press: 1979 First edition)
p.17
[3] According to Holdgate this definition closely
follows the wording used in Article II of the Paris Convention on the Prevention of Marine
Pollution from Land-Based Sources, which according to him has
similar terminology to that of documents of the United Nations
Conference on the Human Environment
(The Stockholm Conference) and the United Nations Environment
Programme (UNEP)
[4]
Martin W. Holdgate A Perspective of
Environmental Pollution (Cambridge: Cambridge University Press:
1979 First edition) p.17
It follows a pathway[1]
which can have an effect on a range of receptors[2]and
thus is judged by its impact on social values as well as environmental
components; it is a pollutant by definition if the effects of substance that
causes damage to structures or amenity, or interference with legitimate uses of
the environment. By identifying and understanding the science, the legal issues,
political agendas, economical benefits and long term detriments, as well as the
social aspect of the problem perhaps a communal recourse can be addressed, thus
striving for common goods based on common principles?
Principles amongst others provide
a moral reasoning to ensure that such fragile ecosystem is given the protection
it needs. If that was not the driving force than perhaps out necessity or public
health at a national level[3]
or trans-boundary harm at a regional level triggering international precedent which
bring states together to address a “harm” such as the Trail Smelter arbitration[4]
where there is an obligation on States not to cause cross-boundary
environmental damage, an obligation repeated in many international instruments
and is customary international law.[5]As
society evolves it does come together to strive for a better expectation and
often these are translated into rules and principles, at least for this author
in the normative sense society knows or recognises what it should do and should
not when it comes to the environment.
It
is beyond the remit of this paper to provide an in-depth perspective on the
science, biodiversity and other methodologies to illustrate the damage done by
pollution; nor can the historical or social-political evolution can be covered
at length to do justice in presenting a narrative, that humanity at large, has awakened
to the fact that the earth we live in is “fragile”, with delicate eco-system that
needs to be protected and preserved. It is not just a national or a regional
concern but a global necessity.
[1]
Air, Water and Soil
[2]
People, infrastructure and property (by air) the ecosystem by water and animals
and plants (by soil)
[3]
Historically the “industrial revolution” changed the social structure in Britain,
a shift from an agricultural
society to a concentrated urbanisation of factories, be they
the cotton industries of Yorkshire, or the steel industries of Sheffield or even the coal mines
of the “black country” outbreak of diseases was rampant and in some cases horrific. In the UK, public health
legislation were introduced, thus, the use of private law remedies
to protect private property impacted by the pollution arising
from industrial activity.
[4]
33AJIL (1939) 182 and 35 AJIL (1941) 684
[5]
Dixon & McCorquodale Cases &
Material on International Law (Oxford: Oxford University Press: 4th
ed) p467
It
is no longer a mere normative concept; humanity is facing an
“ecological bankruptcy”[1]
which was reported as a “spasm” that the planet has not seen in “65 million
years, since the dinosaurs disappeared.”[2]
Humanity thus has an obligation as a
trustee to protect the environment for the future, it has the responsibility to
ensure mechanism and procedures are in place for negotiating the necessary
rules and standards to protect the environment. A duty in providing common
standards and practices, for the functioning of regulatory structures for
environmental management; establishing empowerment to manage and sanctions
activities with values, policies, standards, licences and incentives. Providing
administrative, civil and criminal sanctions for non-compliance with the rule
of law, which needs to be global in its application as environmental law is a
concern for all humanity. Whatever the reason we may rationalise be it
aesthetic or scientific, intrinsic or economic this has to be based on principles
that can be acceptable by all and agreed upon as a common good to serve as the
foundation for soft law. The first step towards accepting principles as a
general anthropocentric value and perhaps then developed as an institutional
principle which can be governed in uniform by treaties and convention and
implemented within national legislature.
1.3 SOFT LAW
There is wide academic literature on
this concept and much like “regulation”[3]
there is “no rigorous and widely accepted definition of soft law”,[4]
however, it has been stated that “[s]oft law consists of written instruments
that spell out rules of conduct that are not intended to be legally binding,”[5]they
are not subject to law of treaties but more as an “international instrument
other than a treaty containing principles, norms, standards or statement of
expected behaviour”.[6]It
is by its nature the articulation of a “norm” in a non-binding written form.
[1]
Mary Christina Wood “You Cant Negotiate
with a Beetle”:Environmental Law for a New Ecological Age (2010) 50 Nat. Resources J. 167-539
[2]
ibid at 178
[3]
Barton B Regulating Energy and Natural
Resources (Oxford:Oxford University Press:2006) Chap 2
[4]
Sheldon D International Law and “Relative
Normativity” in International Law, M.D.
Evans (2003) p166
[5]
Harris D Cases and Materials on
International Law (Sweet & Maxwell: 2004 6th ed) p62
1.4 PRINCIPLES
There is much debate on the nature and conceptualisation of principles,
for the purpose of this paper the focus will be centred on the general notion
in considering if principles can be binding rules or as having a non-binding
normative purpose for international environmental law.
“Principles, even if they are part of law, are norms of a general nature,
which give guidance to state behaviours, but are not directly applicable; the
violation of such principles cannot be pursued in international courts unless
they are made operational by means of more concrete norms.”[1]
However, as we will discuss later that it is a particular principle that
derives the establishment of civil liability, and in some jurisdictions
implemented rigorously be that as an economic instrument or simply a permitting
regime regulated by the respective
government.
[1]
Winfred Lang (1999) UN-Principles and
International Environmental Law p159 downloaded from www.mpil.de/shared/data/pdf/pdfmpunyb/lang_3.pdf
(Also available from
heineonline)
2.1 GLOBAL ENVIRONMENTAL LAW
In its constitutional role international law provides the procedures and
mechanism for negotiating the necessary rules and standards, settling disputes,
and supervising the implementation and compliance with treaties and customary
rules to facilitate and promote cooperation between states, international
organisations, and non-governmental organisation; thus constitutes the process
of international environmental governance, international lawmaking and
regulations and in few areas international trusteeship.[1]Ultimately,
the concern is with regulating environmental problems by providing standards
and practices for mitigation or prevention of pollution, highlighting
conservation by promoting the importance and the sustainable exploitation of
natural resources and biodiversity.
In many cases some international environmental agreements serves the
purpose in harmonising national laws, this is done globally or regionally. For
example, treaties on civil liability for nuclear accidents or oil-pollution
damage at sea replicate the provisions of these treaties and will essentially
be the same in each state party. It is the litigants who have suffered loss in
large-scale international accidents who will have access to justice. However,
lack of uniformity can cause regulatory conflict and this is because states may
have the same goal but differ considerably in the methods and implementation as
well as the standards and timetables they set.
2.2 INTERNATIONAL LAW
International
law offers many vehicles for the necessary developments, custom, treaty, soft
law, general principles, and framework agreement and so on, this can be
utilised in a variety of ways to develop and revise the law to meet new
environmental concerns. Furthermore, the availability of scientific information
and its reliability along with social, economic,
and political implications are factors that affect the speed with which
progress is determined by governments to weigh against environmental demand.
[1]
Birnie P, Boyle A, Redgwell C Iternational
Law & the Environment (Oxford: Oxford University
Press: 2009 3rd
ed.) Chap 1
Thus it is at this stage that the
discourse of this paper will focus on the UN context and the “important role of
legislative declarations as they may be precursors to and guide a later
treaty-making process and are designed to influence the conduct of states
directly.”[1]An
expectation of such declarations which according to Szasz, “may catalyze the
creation of customary law by expressing in normative terms certain principles
whose general acceptance is already in the air.” [2]
[1]
See above Lang p158.
[2]
P. Szasz International Norm-making in:
E. Brown-Weiss, Environmental Change and
International Law,
1992, 68.
2.3 UN-PRINCIPLES
There are wide ranging legal
literature on international law and normative principles which are available,
not to mention the extensive treaties and conventions, as well as the
functionality of the UN. Though it is beyond the scope of this section to show
an exact link to the origin of environmental law or to provide a narrative let
alone a descriptive or a historical analysis of the UN and it’s role; a linkage
was important to demonstrate how principles developed or agreed upon at the
international stage can filter down to the regional or national level, often
enforced by regulatory or other legal or economic means. Yet having said that
it should be pointed out that it does not always happen according to plan, this
is because in many instances it can get disregarded or not applied at all. The
best example is how an oil disaster in the Gulf of Mexico[1]
can ensure billions of dollars of compensation for some, whilst others have
nothing more than “bad press”.[2]The
main difference in the application of these principles and norms is the
strength in the rule of law and a stable democratic system.
[1]
This is in reference to BP operated oil platform disaster in the Maconda oil
field in the Gulf of Mexico.
[2]
This is in reference to the Niger Delta, where I have had personal experience
in witnessing the damage
done to the environment. Though blame can be pointed out in so
many factors, the fact remains the
ecological damage is horrendous.
However, it must be said that one
major factor that has enabled the development of international law and in
particularly environmental law would be largely due to global trade.[1]It
is from this perspective that this paper will develop its analysis on the
polluters pay principle and its application by focusing mainly within the
European and UK angle.
[1]
Lyster R, Bradbrook A Energy Law and the Environment (Cambridge
University Press:2006) p35.
2.4 RIO DECLARATION
The Rio Declaration on Environment
and Development (the “Rio Declaration”),[1]
in 1992, constitutes “at present the most significant universally endorsed
statement of general rights and obligations of states affecting the
environment.[2]It
has been described as an:
“instrument of
international jurisprudence [that] articulates policies and
prescriptions directed at the achievement of worldwide sustainable development”.[3]
Furthermore,
Principle 16 of the Rio Declaration provides that:
“[n]ational authorities
should endeavour to promote the internalization of environmental costs and the
use of economic instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment”.[4]
[1]
Rio Declaration on Environment and Development, United Nations Conference on
Environment and Development, U.N. Doc. A/CONF. 151/5/Rev.1 (1992), reprinted in
31 I.L.M. 874, 878 (1992).
[2]
See Birni, Boyle and Redgwell at p.112.
[3]
John Batt & David C. Short, The Jurisprudence of the 1992 Rio Declaration
on Environment and Development: A Law, Science, and Policy Explication of
Certain Aspects of the United Nations Conference on Environment and
Development, 8 J. NAT. RESOURCES 8: ENVTL. L. 229, 230 (1993).
[4]
Rio Declaration at 879.
[5]
See Sands at p280.
It
is said that the wording does not intend the principle to be legally binding, [1]and
it that the principle is applicable at the domestic level but does not
[1]
See Birni, Boyle and Redgwell at p.322.
govern
relations or responsibilities between states at the international level;[1]
it simply lacks the rule of law. Having said that, it should be noted that the
preambles to the 1990 Oil Pollution Preparedness and Response Convention, the
1992 UNECE Convention on the Transboundary Effects of Industrial Accidents and
the 2003 Kiev Protocol on Liability for Pollution of Transboundary Waters and
Lakes, describe the polluters pay principle, as a “general principle of
environmental law.” Moreover, some treaties like the 1992 Paris Convention for
the Protection of the Marine Environment of the NE Atlantic,[2]
require parties to “apply the polluter pays principle,”[3]
Therefore,
it is in treaty law that the polluters pay principle is traced back as
instrument in establishing rules on civil liability and compensation for damage
resulting from hazardous activities.
[1]
Sands, p 281
[2]
Article 2(2)(b)
[3]
Ibid.
3.1 OECD
It is often quoted in academic
literature that the champions of the polluters pay principle, was conceived in
the 1972 OECD Council Recommendation on Guiding Principles Concerning the
International Economic Aspects of Environmental Policies. This is because it
was the first international instrument to refer expressly to the polluters pay
principle, by endorsing the principle to allocate costs of pollution prevention
and control measures to encourage rational use of environmental resources and
avoid distortion in international trade and investment.[1]
“The principle to be used for
allocating costs of pollution prevention and control measures to encourage
rational use of scarce environmental resources and to avoid distortions in
international trade and investment is the so-called ‘Polluter Pays principle’.
This principle means that the polluter should bear the expenses of carrying out
the above mentioned measures decided by public authorities to ensure that the
environment is in an acceptable state. In other words, the cost of these
measures should be reflected in the costs of goods and services which cause
pollution in production and/or consumption. Such measures should not be
accompanied by subsidies that would create significant distortions in
international trade and investment”.[2]
The above definition was limited as meant the polluter should bear the
expenses of carrying out the measures deemed necessary by public authorities to
protect the environment, yet it did not apply to the costs of environmental
damage. This gradual development in the 1974 OECD Council went a bit further by
reaffirming that the principle constituted a “fundamental principle” for member
countries, by ensuring aid is provided for innovative technologies for the
control of pollution and the development of new pollution abatement equipment
which was not incompatible with the principle. Moreover, there should be
uniformity between the member states in their observance of the principle.[3]
[1]
OECD Council Recommendation C(72) 128 (1972), 14 ILM 236 (1975.
[2]
Ibid.
[3]
OECD Council Recommendation C(74) 223 (1974, paras.I(1), II(3) and III(1), 14
ILM 234 (1975).
In
2001, the OECD Joint Working Party on Agriculture and Environment stated that a
new and expanded form of the polluter pays principle
seeks to cover the costs of accident prevention and to “internalise” the
environmental costs caused by accidents.
"... the polluter should be held
responsible for environmental damage caused and bear the expenses of carrying
out pollution prevention measures or paying for damaging the state of the
environment where the consumptive or productive activities causing the
environmental damage are not covered by property rights."[1]
3.2 EUROPEAN UNION
The polluters pay principles was
introduced into the EC Treaty in 1987, and is enshrined in Article 174(2) of
the Treaty Establishing the European Union (the “EC Treaty”), which provides
that:
“Union policy
on the environment shall aim at a high level of protection taking into account
the diversity of situations in the various regions of the Union. It shall be
based on the precautionary principle and on the principles that preventive
action should be taken, that environmental damage should as a priority be
rectified at source and that the polluter should pay”.[2]
It must be said that the European Court
of Justice and its legislature showed resourcefulness in expanding European
Union competence into the environmental arena long before any formal treaty
Provision.
“the European Court of Justice had placed a liberal
interpretation upon Article 100, which granted the European Union competence to
enact “harmonising” measures, which directly affected the establishment or
functioning of the common market”.[3]
[1]
www.eoearth.org/article/Polluter_pays_principle
[2]
Consolidated Versions of the Treaty on European Union and of the Treaty
Establishing the European Union, art. 174(2), 2002 O.J. (C 325) 1.
[3]
See Michael Cardwell, The Polluter Pays Principle In European Union Law And Its
Impact On United Kingdom Farmers, Oklahoma Law Review, Vol 59:89, 89 at
90.
Strict
liability is imposed as a common scheme for
dangerous activities or dangerous substances on the operator of the activity it
concerns. The amount of liability is not limited and thus reflects more of the
polluters pay principles and is observed more than any other treaties under
which the loss is spread. Injury to persons and property along with impairment
of the environment is covered by “damage” as it is defined.[1]
However, the polluters pay
principle is the responsibility of producers of goods for the costs of
preventing or dealing with the outcome of the process that is pollution. Part
from cost on people or property as mentioned above the principle also covers
costs incurred in avoiding pollution and is not relating to those only on
remedying damage.
As an “economic
instrument” the producer will always pass the cost on to the consumer as market
forces dictate, this stands as a principle and has no legal force that is
defined in statute. The scope on the limits on payments for damage caused has
been the cause for frequent disputes. In R
v Secretary of State, ex parte Standley and Metson[2]
The court ruled:
“it must be understood as requiring the person who causes the pollution,
and that person alone, to bear not only the costs of remedying pollution, but
also those arising from the implementation of a policy of prevention. It can
therefore be applied in different ways. Thus, it may be applied either after
the event or preventively before the harm occurs”.
However,
the cost will be identified with the polluter, rather than being a general
societal cost and, in theory at least, a manufacturer with high pollution costs
maybe become less economically competitive than one with lower costs.[1]Apart
from eco-tax measures and criminal liability the Directive on civil liability,[2]which
creates strict liability, subject to exemptions and legal defences, for
environmental damage caused by activities judged to pose a potential or actual
risk to humans and the environment, and fault-based liability for damage to
natural resources caused by activities which are not inherently dangerous. The
opening preamble states the following:
[1]
Shaw J, Hunt J & Wallace C Economic
and Social Law of the European Union (London NewYork: Palgrave Macmillan:
2007) p 432
[2]
European Parliament and Council Directive 2004/35 on environmental damage, OJ
2004 L143/56
“fundamental principle of this
directive.....[is]...... that an operator whose activity has caused the
environmental damage or the imminent threat of such damage is to be held
financially liable, in order to induce operators to adopt measures and
development practices to minimise the risks of environmental damage so that
their exposure to financial liabilities is reduced”.[1]
[1]
Ibid.
3.3 EQUITY AND STRICT
Equity is
the name given to the set of legal principles, in jurisdictions following the
English common law tradition, which supplement strict rules of law where their
application would operate harshly, so as to achieve what is sometimes referred
to as "natural justice". It is often confusingly contrasted with
"law", which in this context refers to "statutory law" (the
laws enacted by a legislature, such as Parliament), and "common law"
(the principles established by judges when they decide cases). In modern
practice, perhaps the most important distinction between law and equity is the
set of remedies each offers. The most common civil remedy a court of law can
award is monetary damages. Equity, however, enters injunctions or decrees directing
someone either to act or to forbear from acting. The notion of Equity is
introduced to the polluters pay principle as a mechanism for prescribing that:
“in
addition to ... economic efficiency considerations, fundamental fairness and
the protection of property also require that polluters pay for or abate their
own emissions”.[1]
The
contention of these interpretations is that governments should only bear the
abatement costs, but the responsibility should be on the specific polluters for
abating their contribution to a specific pollution problem. In the finest
tradition of the common law scholars have noted, “[L]awyers have interpreted
the economic [polluter pays principle] as a requirement that polluters
should pay all the social and economic costs of their conduct”[2] this hard approach whereby, for example the
Rio Principle 16 is interpreted so that,
[1]
Daniel C. Esty, Toward Optimal Environmental Governance, 74 N.Y.U. L. REV.
1495, 1504 (1999).
[2]
Sanford E. Gaines, The Polluter-Pays Principle: From Economic Equity to
Environmental Ethos, 26 TEX. INT'L L.J. 463, 480 (1991).
“it appears to state an affirmative
and original 'strong' form of the
Polluter-Pays Principle that directs governments to assure the internalization
of environmental costs through the use of economic instruments, not merely to
refrain from subsidizing the purchase and use of pollution control equipment by
private industry”, is gaining ground[1]
Many of the
environmental statute offences are usually the ones of strict liability and
that is only actus reus[2]or
fault in the form of intention, recklessness or negligence.[3]According
to Lord Hoffman in the House of Lords decision in Empress[4]confirmed
that the offence is one of strict liability,[5]only
does this mean that there is no need for mens
rea, but one can be liable for certain deliberate acts of third parties and
for certain natural events. However, the problem is often in the difficulty of
identifying the “polluter”, including the Contaminated Land Regime in EPA 1990,
Pt 2A and under the Agricultural Nitrate Directive 91/676/EEC.
Under Pt 2A,
the polluters pay assertion is nothing more than shorthand for complex system
of detailed regulatory tests a complex system designed to address the
consequences of pollution through economic measures. The polluters pay
principles is not concerned with explicit punishment.[6]if
that was the case than many polluters under the contaminated land regime would
feel hard done by because of retroactive legislation. However, if a contaminated
land is identified, then the local authority or the Environmental Agency
identifies the “appropriate person” to remediate the land. [7]
[1]
See David A. Wirth, The Rio Declaration
on Environment and Development: Two Steps Forward and One Back, or Vice Versa?,
29 GA. L. REV. 599, 643 (1995).
[2]
In this context, generally an act, e.g. causing trade or sewage effluent to be
discharged into controlled waters (the actis
reus of the offence in s.85 (3) of the WRA 1991.
[3]
Hilson C Regulating Pollution A UK and EC
Perspective (Oxford: Hart Publishing: 2000) p134
[4]
Empress Car Company Ltd v NRA [1998]
2 WLR 350
[5]
Causing offence in section 85 of the Water Resources Act (WRA) 1991
[6]
See above Bell & McGillivrary p564
[7]
Maria Lee “New” environmental
liabilities: the purpose and scope of the contaminated land regime and the
Environmental Liability Directive Env. L. Rev 264
3.4 APPLICATION IN PRACTICE.
In this
section a brief examination on how the principles are applied in different countries.[1]
a) USA,
favours interpretation of the principle in equity terms, it looks at the
allocation of costs between polluters and society at large, and between
individual polluters. Certain provisions of the United States’ Clean Air Act
1970 (the “CAA”) and Clean Water Act 1977 (the “CWA”) require polluters to
satisfy environmental standards at their own expense; and the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (“CERCLA”) assigns liability for costs associated with cleaning-up
sites contaminated by hazardous wastes. CERCLA is a notable milestone in the
development of the polluter pays principle in the United States and
commentators have noted that: “the polluter pays principle is one of the
central objectives or goals of CERCLA”.[2]
b) Germany
accepted the principle on the basis that the polluter must pay for the
reduction of the polluting effects and also for the restitution after damage
has been done. However, subsidies were not ruled out as it provides financial
aid for investments on environmental protection.
c) France
has put reliance on pollution charges as means of applying the principle.
d) Netherlands
has an approach where the governments considers the discharges in general to be
responsible.
e)
Sweden has the costs of administration
monitoring and control which are charged on that basis. This include penalties
for non-compliance for non-compliance
[1]
Mc Loughlin, Bellinger Environmental Pollution Control (London:
Graham & Trotman/ Martinus Nijhoff:
1996) p151-152
[2] J.
Whitney Pesnell, The Contribution Bar in
CERCLA Settlements and Its Effect on the Liability of Nonsettlors, 58 LA.
L. REV. 167, 190 (1997).
CONCLUSION
Polluters
Pay Principle like other principles is essentially a guide to desirable courses
of action, and it clear that it has rarely been fully satisfied in either EC or
UK environmental legislation.[1]The
principles has not been narrowed to a specific law, and it was not meant to be
as such, and this is because it is an economic instrument applicable in the
accordance to the interpretation of the principle. It is impossible to point to
any general pattern of state practice. It
has been left to national rather than international action for its
implementation; as a result states have been consistent in their policy in the
method of choice of taxation, charges and among other liability laws. The most
that can be said is that regions, institutions intergovernmental bodies
including courts can and should take account of the principle in the
development of environmental law and policy.
The extent
to which civil liability makes polluters pay for environmental damage will
depend on variety of factors. If it is negligence on which liability is based,
this has to be proved but harm which is neither reasonably foreseeable nor
avoidable will not be compensated and the victim or the taxpayer, not the
polluter, will bear the loss. Strict liability on the other hand is a better
approximation of the polluters pay principle, but if limited to amount how one
does value what is worth what? There is never an equilibrium in economic value
of goods and services as well equity, what is worth one price in one region
will always be worth more or less in another.
In the end
what matters is how a regime applies the principle, how it is interpreted and
how and who enforces. As an “economic” instrument it becomes a mere permit to a
limited controlled pollution. This may not be a bad thing if the principles
ensures decisive and controlled regulation at least than the liability can be
as it is many western Europe penalties or charges, and in extreme cases
criminal.
[1]
See above Bell & McGillivary at p244
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