Environmental Liability. Study for a Future Amendment of European Legislation

Environmental Liability. Study for a Future Amendment of European Legislation Professor Cristina ARAGÃO SEIA1 Abstract The great challenge of this century is to figure out how we can achieve development, combat climate change, conserve wildlife, and protect our common resources, in global terms, while maintaining a balance between the environment and social and economic considerations. Environmental liability, conceived by the European Union and the Member States as an instrument of administrative law in substantial and sanctioning terms, is one of the preferred for protecting the environment and ensuring sustainable development. It is a new approach to the environment as an injured party, allowing the repair of pure ecological damage, and ensuring its prevention. Given the particular characteristics of environmental damage, namely the fact that the environment is a collective good and has no geographical limits, environmental liability must focus on a cross-cutting and transnational approach. A European environmental liability regime was adopted and entered into force about 15 years ago. This work aims to assess the current usefulness of that regime and the need for its possible modification, through a comparative and critical analysis of the options took by some of the Member States, particularly Portugal, and the data available in this matter, and suggest aspects in which the regime can be improved. Keywords: European Union, environment, environmental liability, polluter pays principle, energy, health, safety law. JEL Classification: K32 1. Introduction As soon as international society became aware that the protection of the environment was indispensable, unpostponable, and costly, the idea that environmental damage should be compensated by those who caused it began to take shape. In a first phase, environmental damage was that which resulted from the damage to environmental components and reflected on the health, life, and property of people, so that the recourse to civil liability seemed adequate and sufficient. Although such damages were remedied, the environment itself remained damaged unless the States endeavoured to repair it, which would have to be done at the expense of the State budget and taxpayers' taxes. The autonomation of the concept of environmental damage as pure ecological damage highlighted the urgency of a regime of environmental liability that would ensure not only the repair but also, and above all, the prevention of environmental damage. This regime found its legal basis in the polluterpays principle, as well as in the other basic principles of environmental policy in the European Union, as referred to in the Treaty on the Functioning of the European Union: the precautionary principle, the principle of prevention and the principle that environmental damage should as a priority be rectified at source. Adopted about 15 years ago, the question today is whether this regime is effective, given the scarcity of its implementation, whether it is useful and how its implementation can be strengthened. The European Commission is preparing an assessment, due by the end of June, to determine whether the environmental liability regime is adequate and where it can be improved. We will begin by analysing the genesis of the European environmental liability regime, what characterises it and what distinguishes it from other sectoral environmental legislation and the way in which it has been applied, using data provided by some of the Member States, in particular Portugal. This will be followed by a survey of the main challenges and difficulties it is facing and will conclude with some proposals for changes that could be important in strengthening this instrument for environmental protection. 1 Cristina Aragão Seia - Faculty of Law, Lusíada University, Oporto; CEJEA - Centre for Legal, Economic and Environmental Studies, Portugal, . Perspectives of Law and Public Administration Volume 12, Issue 2, June 2023 151 2. The Directive 2004/35/EC After years of discussion on whether there should be a common environmental liability regime, the White Paper on environmental liability2 culminated in the adoption of European Parliament and Council Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (ELD). 2.1. A new environmental liability regime The European Union has established, through the ELD, a common environmental liability regime to prevent environmental damage in the face of imminent threat of such damage, based on a high level of protection of the environment. This regime is based on the polluter pays principle 3 , but in line with the principle of sustainable development, in the expectation of not only guaranteeing the restoration of the environment, but also, above all, of increasing the levels of precaution and prevention4. The adjective "civil", which used to qualify liability for environmental damage, had already been dropped years ago in the White Paper. This removal was maintained in the ELD, which is understandable given its non-application to traditional damage. Although the ELD establishes a system of environmental liability and uses this term in its title, it does not contain any definition of it. We may say, however, that this is an administrative liability, because, although it makes use of institutes typical of civil liability (such as the notions of strict and faulty liability), it is performed by the competent public authorities of each Member State, without the need to resort to the intervention of the courts. In this context, it is up to the competent national authorities, responsible for implementing this new regime, to identify the operators responsible for pollution and ensure that they take the preventive or remedial measures deemed appropriate. It is also their task to determine and assess the extent of the environmental damage and, in the first instance, to reach agreement with those responsible on the measures to be adopted. Silveira qualifies this environmental liability regime as a sui generis public regime, "a special administrative procedure of environmental law". 5 The intention was not, however, as she states, to merely "administrativise" the existing civil liability rules but, rather, to create a new liability regime, complementary to the existing liability regimes - administrative, civil, and criminal - at both national and European level. The truth is that none of the existing liability systems could meet the preventive purpose of the new regime because all of them presupposed the previous occurrence of damage in order to determine liability. Moreover, none of them offered, in themselves, a satisfactory and complete remedy for environmental damage, either because there was no private ownership of the affected legal assets - the environment itself (which raises a problem of active legitimacy) - or because of the difficulty of establishing a causa (...truncated)