Environmental Liability Directive Cutting Across Polluter Pays Principle?
SOURCE: CIWM, DECEMBER 2009
A recent Opinion by an Advocate-General to the ECJ has examined the interpretation of the Environmental Liability Directive (ELD) and its interaction with the “polluter pays” principle.
The case concerned operators occupying contaminated sites on the seafront in Sicily, who were required by national authorities to take remedial and preventative measures. The operators challenged these requirements, arguing that the “polluter pays” principle precluded authorities from requiring such measures without first assessing whether there was a causal link between the operators’ actions and the pollution at the site. They argued that the principle was also breached due to the lack of distinction between environmental damage caused by historic operations and that caused by the present occupiers of the site.
However, the Advocate-General stated that companies operating in a polluted area are primarily responsible for damage in that area. She noted that the ELD allowed Member States to adopt more stringent measures for environmental protection, and that the polluter pays principle was simply a general Community objective as regards environmental policy.
In particular, she confirmed that there was no obligation in the ELD for authorities to determine the original polluter if the original causes of the damage could not be identified.
The Opinion indicates that industrial operators may be caught by the ELD and required to take both remedial and preventative measures, even where they did not themselves cause the damage. This represents a potentially more onerous liability framework than the contaminated land regime, which only requires remediation of sites formally designated as contaminated, and makes “innocent” owners liable only where the original polluter cannot be found.
AUTHOR: Vincent Brown
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