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UNIVERSITY OF PADUA FACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2011-2012. INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE IN INTERNATIONAL LAW AND ITS ASSESSMENT: DIRECTIVE 2004/35/EC B&P Avvocati luciano.butti@buttiandpartners.com www.buttiandpartners.com.
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UNIVERSITY OF PADUAFACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2011-2012 INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE IN INTERNATIONAL LAW AND ITS ASSESSMENT: DIRECTIVE 2004/35/EC B&P Avvocati luciano.butti@buttiandpartners.com www.buttiandpartners.com
Index • Environmental damage – definition and recent example; • 2. The notion of “compensable damage” – Lugano Convention and UN Security Council Resolution no. 687 (1991); • 3. European Directive 2004/35/EC.
1. Environmental damage: definition • Commonly, environmental damage is considered to be any adverse effects induced onto environmental goods by an anthropic activity; • A broad definition of environmental goods would include both natural resources, (unitary or integrated), and the services they provide to the ecosystem, or to humans; • “Environmental damage”, if one adopts such definitions, may refers to an extremely broad number of different harms. Thus, we should ask ourselves: what are the characters of an environmental damage legally relevant on the international level?
1. Environmentaldamage: a recentexample (1) BP oil spill – april 2010 – Gulf of Mexico 1) LOSS OF PROFIT; FISHERIES: on may 2 the National Oceanic and Atmospheric Administration closed commercial and recreational fishing in affected federal waters. The closure incorporated over 36% of Federal waters in the Gulf of Mexico. Initial cost estimates to the fishing industry were $2.5 billion; TOURISM: The U.S. Travel Association estimated that the economic impact of the oil spill on tourism across the Gulf Coast over a three-year period could exceed approximately $23 billion;
1. Environmentaldamage: a recentexample (2) 2) DAMAGE TO OR LOSS OF LIFE OR PERSONAL PROPERTY; By June 21, 143 cases directly related to oil spill exposure had been reported to the Louisiana Department of Health and Hospitals. 108 of those cases involved workers in the oil spill clean-up efforts, 35 were reported by the general public. Chemicals from the oil and dispersant are believed to be the cause of illness reported by people who live along the Gulf of Mexico. Poly-aromatic hydrocarbons (PAHs) contain compounds that have been identified as carcinogenic, mutagenic and teratogenic.
1. Environmentaldamage: a recentexample (3) • LOSS OF BIODIVERSITY - “This is the worst environmental disaster the US has faced”. (Carol Browner, White House Energy Adviser); - 400 species in danger. 4) DISTRUCTION OF NATURAL RESOURCES - 4 million barrels of oil would be enough to "wipe out marine life deep at sea near the leak and elsewhere in the Gulf" as well as "along hundreds of miles of coastline“. Harry Roberts, professor of Coastal Studies at Louisiana State University.
1. Environmentaldamage: compensation and itsquantification The mentioned harms are just few of the many different ones potentially arising from an “environmentally harmful” event. Questions: a) Which harms can arise the right to a compensation? b) Who should be compensated? c) How should such compensation be quantified? In other words, to what extent should the victim be compensated?
2. The notionof “compensable” damage (1) • A so-calledanthropocentricvision; • Environmentalliabilitydiscipineismostlyconcernedwithdamagetopersons and propertythroughdamageto the environment; • Scarce, ifnotevenmissing, was the attentionawardedtoproblemsofdamageto the environmentper se in the internationalpractice; • Conventionsfacing the problemofliabilityforenvironmentaldamage are, amongothers: • PARIS CONVENTION ON THIRD PARTY LIABILITY IN THE FIELD OF NUCLEAR DAMAGE (1960); • INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE (1969); • LONDON CONVENTION ON CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE (2001).
? What is the difference between Convention on civil liability for bunker oil pollution damage (2001) Concerns any ship, which transports “bunker oil” (oil used or intended to be used for its propulsion). Establishes the ship-owner liability in case of pollution damage caused by bunker oil. Compulsory insurance. Convention on civilliabilityfor oil pollutiondamage (1969) Concernsoil-carryingships (shipscarrying oil as a cargo). Establishes the liabilityof the ship-ownerfor the damagecausedbyan oil discharge (due toaccidents, faults, sink, etc.) Compulsoryinsurance.
PARIS CONVENTION (1960) Article 3 The operator of a nuclear installation shall be liable, in accordance with this Convention, for: damage to or loss of life of any person; and damage to or loss of any property. CIVIL LIABILITY CONVENTION (1969) Article 1(6) "Pollutiondamage" meansloss or damagecausedoutside the shipcarrying oil bycontaminationresultingfrom the escape or dischargeof oil from the ship, whereversuchescape or dischargemayoccur, and includes the costsof preventive measures and further loss or damagecausedby preventive measures. 2. The notion of “compensable” damage (2)
2. The notionof “compensable” damage (3) • London Convention (2001) • Art. 1 “Pollutiondamage” means: • Loss or damagecausedoutside the shipbycontaminationresultingfrom the escapeof or dischargeof bunker oil….whereversuchdischargemayoccur, providedthatcompensationforimpairmentof the environmentotherthanloss of profit fromsuchimpairmentshallbelimitedtocostsofreasonablemeasures… ; • Thecostof preventive measuresand further loss or damagecausedby preventive measures.
2. The notion of “compensable” damage: the notion of Loss of Profit • London Convention provides a definition of pollution damage which includes the compensation for impairment of the environment. • Loss of profit has been interpreted as including both: • Consequential loss: loss of earnings by owners/users of property contamined by oil; • Pure economic loss: loss of earnings, suffered by those parties whose property has not been damaged. (Sometimes the proof of the causal link can be difficult to achieve). …
2. The notion of “compensable” damage: the 80s and the notion of “impairment of the Environment” • From the 80s, a new definition of environmental damage began to develop. There are several causes of this evolution: • Progressive increase in environmental accidents’seriousness; • Increased attention on the environmental topic; • Pressure made by International Organizations and media. • References to “impairment of the environment” began to be made. • With regard to the quantification of environmental damage per se themain difficulty has been met indefiningwhat it should be considered covered.
2. The notion of “compensable damage”: environmental damage “per se” • In defining env. damage per se international practice reflects various approaches. Some of them are particularly narrow, other more extensive. • Complex distinction between the concept of environmental damageand pollution. The latter is a concept included in a considerable number of Conventions. (It can also be considered as an impairment of the environment at “acceptable” level, and does not necessarily always entail liability. • Tresholds at which environmental damage entails liability are established.
2. The notion of “compensable damage”: quantification Given the difficulty in defining and assessing environmental damage, how should the compensation be quantified? • There is a strong need for clear limits and definitions, still lacking in international practice and international instruments; • An important limit usually set forth by international instruments is related to the damage to the environment as itself:compensation, with regard to this damage, “should be limited to the costs of reasonable measures of reinstatement, actually undertaken or to be undertaken”.
3. The notionof “compensabledamage”: The Lugano Convention (1992) The Convention provides for a strict liability regime concerning dangerous activities causing environmental damage. It is aimed at ensuring an adequate compensation for the damage resulting from such activities, and providing for reinstatement. Env. Damage under the LUGANO CONVENTION (art. 2.7) a loss of life or personal injury; b loss of or damage to property other than to the installation itself or property held under the control of the operator, at the site of the dangerous activity; c loss or damage by impairment of the environment, provided that compensation for impairment of the environment, other than for loss of profit from such impairment, shall be limited to the costs of measures of reinstatement actually undertaken or to be undertaken; d the costs of preventive measures and any loss or damage caused by preventive measures.
3. The notionof “compensabledamage”: The Lugano Convention (1992) • "Measures of reinstatement" means any reasonable measures aiming to reinstate or restore damaged or destroyed components of the environment, or to introduce, where reasonable, the equivalent of these components into the environment. Internal law may indicate who will be entitled to take such measures. • "Preventive measures" means any reasonable measures taken by any person, after an incident has occurred to prevent or minimize loss or damage (…).
3. The notion of “compensable damage”: Determining the compensation and the reinstatement measures (1) 1)Ithasbeenhighlydiscussedwhatthisclaimedreasonablenessshouldbeintendedtobe. 2)Itisunclear: • whatshouldbe the status quo ante (the baselinecondition) which the reinstatementmeasuresshouldaimtorestore? B) whatcostsshouldbepaidifrestorationwerenotfeasible? In case ofirreversibledistructionof the environment, in fact, measuresofreinstatementwouldbecameunreasonable. Whatthen?
3. The notion of “compensable damage”: Determining the compensation and the reinstatement measures (2) Still, environmental damage per se is rarely compensated beyond strictly quantifiable economic loss. The IOPC Fund (International Oil Pollution Compensation Funds), for example, stated that: “the assessment of compensation is not to be made on the basis of an abstract quantification of damage, in accordance with theoretical models” (Resolution N. 3, 1980).
4. European Directive 2004/35/EC (1) • The Directive focuses primarily on environmental damage per se. • The Directive concerns environmental liability with regard to: Prevention of the environmental damage; Remediation of the environmental damage, when occurred. • The Directive introduces the notions of primary, complementary and compensative remediation.
4. European Directive 2004/35/EC (2) Art. 1 - The purpose of this Directive is to establish a framework of environmental liability to prevent and remedy environmental damage. The liability is based on the "polluter-pays" principle. An operator whose activity has caused the environmental damage or the imminent threat of such damage is to be held financially liable. This principle aims at inducing operators to adopt measures and develop practices to minimize the risks of environmental damage so that their exposure to financial liabilities is reduced.
4. European Directive 2004/35/EC (3) Directive 2004/35/EC applies to three categories of environmental damage: 1 - damage to protected species and natural habitats: any damage that has significant adverse effects in reaching or maintaining the favourable conservation status of such habitats or species (see criteria of Annex I); 2 -water damage: any damage that has significant adverse effects on the ecological, chemical and/or quantitative status and/or ecological potential of the waters concerned; 3 -land damage: any land contamination that creates a significant risk for human health, as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms and micro-organisms.
4. European Directive 2004/35/EC (4) Art. 2 - Other important definitions: “Damage” means “a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly” “Imminent threat of damage”means “a sufficient likelihood that environmental damage will occur in the near future” “Emission” means “the release in the environment, as a result of human activities, of substances, preparations, organisms and micro-organisms”
4. European Directive 2004/35/EC (5) Art. 2 - Other important definitions: “Operator”means “any natural or legal, private or public person who operates or controls the occupational activity or, when this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorization for such activity” “Occupational activity” means “any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or non-profit character”
4. European Directive 2004/35/EC (6) Art. 3 – The liability scheme The Directive shall apply to: (a) environmental damage caused by any of the occupational activities listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities; (b) damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent.
4. European Directive 2004/35/EC (7) Art. 4 – Exclusions The directive identifies some particular cases in which the causal link between the activity and the damage is excluded. The liability scheme does not apply in case of: • - armed conflict, hostilities, civil war, insurrection; • - exceptional, inevitable and irresistible natural phenomenon; • - nuclear activities; • - national defense, international security, civil protection; • where some mentioned international liability treaties apply. Damage caused by pollution of a diffuse character is covered by the directive only where it is possible to establish a causal link between the damage and the activity of individual operators.
4. European Directive 2004/35/EC (8) Art. 17 - Temporal Application of the Directive The Directive shall not apply to damage: • caused by an emission, event or incident that took place before April 30th, 2007; • caused by an emission, event or incident which takes place subsequent to the April 30th,2007 when it derives from a specific activity that took place and finished before the said date; • if more than 30 years have passed since the emission, event or incident, resulting in the damage, occurred.
4. European Directive 2004/35/EC (9) • Art. 11 – Competent Authority • Member States shall designate the competent Authority(ies) responsible for fulfilling the duties established by the Directive. • Authorithy’s duties: • determining which operator has caused the damage or the imminent threat of damage; • assessing the significance of the damage; • determining which remedial measures should be taken with reference to Annex II. To that effect, the competent Authority shall be entitled to require the relevant operator to carry out his own assessment and to supply any information and data necessary.
4. European Directive 2004/35/EC (10) Preventive Action Art. 5: Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring… 1. The Operator shall, without delay, take the necessary preventive measures; 2.The competent Authority may, at any time: (a) require the operator to provide information on any imminent threat of environmental damage or in suspected cases of such an imminent threat; (b) require the operator to take the necessary preventive measures; (c) give instructions to the operator to be followed; (d) if the operator fails to comply with the obligation listed above or cannot be identified … the Authority may take the necessary preventive measures itself.
4. European Directive 2004/35/EC (11) Remedial Action Art. 6: Where environmental damage has occurred the operator shall, without delay, informthe competent Authority of all relevant aspects of the situation and take: (a) all practicable steps to immediately control, contain, remove or otherwise manage the relevant contaminants and/or any other damage factors in order to limit or to prevent further environmental damage and adverse effects on human health or further impairment of services, and (b) the necessary remedial measures… (in accordance with Annex II)
4. European Directive 2004/35/EC (12) Remedial Action The competent Authority may, at any time: (a) require the operator to provide supplementary information on any damage that has occurred; (b) take, require the operator to take, or give instructions to the operator concerning, all practicable steps to immediately control…the damage factors, in order to prevent further environmental damage; (c) require the operator to take the necessary remedial measures; (d) itself take the necessary remedial measures.
4. European Directive 2004/35/EC (13) Art. 7-Determination of remedial measures: Operators shall identify, in accordance with Annex II, potential remedial measuresand submit them to the competent Authority for its approval (unless the competent Authority has already taken action itself. (…) The Authority shall then decide which remedial measures shall be implemented. (…)
4. European Directive 2004/35/EC (14) ANNEX II - REMEDYING OF ENVIRONMENTAL DAMAGE • 1) Remedying of environmental damage, in relation to water or protected species or natural habitats, is achieved through: • (a)“Primary" remediation”: any remedial measure which returns the damaged natural resources and/or impaired services to, or towards, baseline condition; • (b) “Complementary" remediation”: any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services; • (c) “Compensatory" remediation”: any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect.
4. European Directive 2004/35/EC (15) Definition of Interim Losses “Interim losses" means losses which result from the fact that the damaged natural resources and/or services are not able to perform their ecological functions or provide services to other natural resources or to the public until the primary or complementary measures have taken effect. It does not consist of financial compensation to members of the public.
4. European Directive 2004/35/EC (16) • First option: Primary Remediation (returning to baseline condition). • Where not feasible: Complementary Remediation (to provide a similar level of natural resources/services). • +Compensatory Remediation for the interim losses pending recovery.
4. European Directive 2004/35/EC (17) Choice of the remedial options • The remedial options should be evaluated, using best available technologies, based on the following criteria: • - the effect on public health and safety; • - the cost of implementing the option; • - the likelihood of success of each option; • - the extent to which each option will prevent future damage, and avoid collateral damage; • - the length of time it will take for the restoration to be effective; • the geographical linkage to the damaged site. • Etc.
4. European Directive 2004/35/EC (18) ANNEX II - REMEDYING OF ENVIRONMENTAL DAMAGE 2) Remedying of environmental damage, in relation to land damage: The necessary measures shall be taken to ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the contaminated land, taking into account of its current use or approved future use at the time of the damage, no longer poses any significant risk of adversely affecting human health. The presence of such risk shall be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of harmful substances, preparations, organisms and micro-organisms, their risk and the possibility of their dispersion.
