The Reciprocal Relationship of Environmental Responsibility and Liability: What are the Chances?

Transcription

1 , Concentric rinds The Reciprocal Relationship of Environmental Responsibility and Liability: What are the Chances? Florina Popa, Flaminia Stârc-Meclejan West University of Timisoara, Faculty of Law

2 Relativity Where do we find ourselves? In a series of which we do not know the extremes, and believe that it has none. We wake and find ourselves on a stair; there are stairs below us, which we seem to have ascended; there are stairs above us, many a one, which go upward and out of sight... Ghostlike we glide through nature, and should not know our place again. Ralph Waldo Emerson

3 Directive 2004/35/EC with regard to the prevention and remedying of environmental damage the prevention and remedying of environmental damage should be implemented through the furtherance of the "polluter pays" principle and in line with the principle of sustainable development (recital 2)

4 Directive 2004/35/EC the fundamental principle should be to induce operators to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liabilities is reduced

5 Romanian legislation concerning environmental liability GEO no. 68/2007 implementing Directive 2004/35/EC, complements GEO no. 195/2005 on environmental protection - Art. 95 (1) Liability for environmental damage shall be objective, independent of fault. In the case of a plurality of authors, they shall be held jointly liable.

6 "environmental damage stricto sensu Art. 2 (1) pt. 22 of GEO no. 195/2005 & Art. 2 pt. 12&13 of GEO no. 68/2007: (a) damage to protected species and natural habitats (b) water damage (c) land damage "damage" means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly

7 environmental damage lato sensu environmental damage - the cost quantifiable effect of damage to human health, property or the environment caused by pollutants, harmful activities or disasters (Art. 2 (1) pt. 52 of GEO no. 195/2005) environmental damage stricto sensu + damage by ricochet (on human life & health, property)

8 Remedy both categories must be remedied: pure ecological damage, according to Art. 95 of GEO no. 195/2005 and GEO no. 68/2007, and the damage by ricochet based on the general rules concerning liability in the Civil code.

9 Remedy = "remedial measures" = any action(s), including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to provide an equivalent alternative to those resources or services (Annex II art. 2 pt. 10 GEO no. 68/2007) remedy in Civil code, as their aim is to return the damaged natural resources and/or impaired services to, or towards, baseline condition not to compensate them financially

10 Remedy does not apply to cases of personal injury, to damage to private property or to any economic loss and does not affect any right regarding these types of damage (Art. 3 (4) of GEO no. 68/2007), Rind

11 Responsible persons Environmental protection is an obligation of all natural and legal persons (Art. 35 (3) Constitution, Art. 94 (1) GEO no. 195/2005) GEO no. 68/2007: - establishes a framework based on the polluter pays principle - only refers to "operators of an occupational activity = activity carried out in the course of an economic activity, a business or an undertaking, of private or public, (non)-profit character - the establishment of a causal link between the activity and the damage is always required! (par ECJ Case C-378/08)

12 ECJ - Case C-378/08 ruling Directive 2004/35 does not preclude national legislation which allows the competent authority... to operate on the presumption, also in cases involving diffuse pollution, that there is a causal link between operators and the pollution found.... However, in accordance with the polluter pays principle, in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.

13 ECrtHR In Tătar case (ECrtHR, Tătar v. Romania, 27 January 2009, 67021/01), the Court found that the applicant had failed to demonstrate a sufficient causal link between exposure to sodium cyanide and asthma conclusion of 3 scientific reports: the dose of sodium cyanide that can cause respiratory ailments such as asthma is not yet known + statistics are insufficient

14 ECrtHR EIA highlighted the risks of serious or irreversible damage entailed by the activity, but the operating conditions laid down by the Romanian authorities had been insufficient to preclude the possibility of serious harm in breach of the precautionary principle, according to which the absence of certainty with regard to current scientific and technical knowledge cannot justify any delay on the part of the State in adopting effective and proportionate measures

15 Judge Zupančič ECrtHR dissenting opinion in Tătar case precautionary principle is inherently nothing else from a legal point of view except a presumptio juris tantum. At the most abstract political level, this assumption overturns the common sense hypothesis that any industrial activity is harmless to the environment and the individual. This hypothesis has been considered common sense for many decades after the Industrial Revolution...

16 Request for action affected natural or legal persons and NGOs have the right to request the competent authority to take remedial action if they deem it necessary + they shall have access to a court to review the procedural and substantive legality of the decisions NGOs any NGO promoting environmental protection and meeting any other requirements under the law shall be deemed to have rights capable of being impaired for this purpose + they also have legitimatio ad causam - lex posterior derogat priori (Art. 20 (2) of GEO no. 68/2007 & Art. art. 37 CCP), Fishes in waves

17 Action "remedial measures" means any action, or combination of actions, including mitigating or interim measures to restore, rehabilitate or replace damaged natural resources and/or impaired services, or to provide an equivalent alternative to those resources or services as foreseen in Annex II "preventive measures" means any measures taken in response to an event, act or omission that has created an imminent threat of environmental damage, with a view to preventing or minimising that damage

18 Preventive action where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventive measures and to inform the competent authority of all relevant aspects of the situation (within 2 hours) shall be proportionate to the threat and not go beyond what is necessary in order to prevent the damage, in accordance with the precautionary decision making principle (Communication from the Commission on the precautionary principle (COM(2000) 1 final of 2 February 2000) )

19 precautionary decision making principle an emerging legal standard of care for corporations (see also M. Kerr, R. Janda, C. Pitts, Corporate Social Responsibility. A Legal Analysis, p. 388 et al.) corporations should invest in the research and development of sustainable products and services (M. Kerr et al., op. cit., p. 407) when the operator causing environmental damage or any imminent threat with such a damage is part of a consortium or of a multinational company, he shall be liable with the consortium or company in question - the corporate veil could be pierced if the entity causing the damage is a consortium or multinational company... (Art. 31 (3) GEO no. 68/2007), Knot

20 Thank you for your attention!, Concentric rinds