ES&T EUROPEAN
NEWS
Europe's Pollution Liability Debate Heats Up
P
olluting industries in Europe would be liable for the environmental damage they cause under a new proposal drafted by the European Parliament's environment committee. Most controversially, regulatory authorities would share in the liability where plant authorizations are subsequently found to be too lenient. The proposal, to be voted on this month by the full Parliament, follows more than a year of intense lobbying and opinion canvassing by the European Commission, the EU's executive body, in March 1993 {ES&-T, May 1993, p . 784). The Commission's discussion document, the Green Paper "Remedying Environmental Damage," has since sent shock waves through each European capital and all sectors of business. Under the Parliamentary proposal, which was drafted by the German member Siegbert Alber on behalf of the environment committee, public authorities would be made severally liable where they granted authorizations or discharge permits for a plant that causes environmental damage. Regulatory bodies would be more likely to err on the side of caution, the politicians believe. Running alongside this measure is a proposal that the use of best available technology would not count as a defense against liability. The proposal recommends a system of "absolute" liability: a site operator would be liable irrespective of fault, and the burden of proof would be reversed. If there were good reason to believe that a particular industrial facility had caused environmental damage, the operator would have to disprove the assertion, rather than the plaintiff having to gather conclusive evidence. According to EU procedure, the Parliament must deliver its opinion on the Green Paper before the European Commission can draft legislation. The Commission, which must take the Parliament's views into account, plans to publish a White Pa-
BY J U L I A N
ROSE
per on environmental liability law this summer that will spell out the Commission's legislative plans. Civil liability law is normally used by injured parties to obtain compensation for damage to their property or interests. But under the Parliament's proposal, the concept of damage would be extended to the unowned environment. Public authorities and environmental groups could bring actions. Europe's industrial lobbies argue that such a mechanism is inappropriate for repairing environmental damage. "Civil law has no rules for defining damage resulting from activities harmful to the environment," the European employers' federation UNICE says. It should be left to public law and the public authorities to decide whether to take action. UNICE also questions whether there is any need to harmonize member states' laws on environmental liability. EU laws can be passed only in those cases in which member states' actions in isolation would be inadequate or might lead to competitive advantages for an industry in one particular country. At UNICE's request, the Commission is now undertaking a study of internal market distortions that may result if environmental liability laws are not harmonized. But the emerging c o n s e n s u s in the EU seems to be that, in the case of future pollution, liability laws should be the same in all member states. For old pollution it is more difficult to justify harmonization, because some countries have longer i n d u s t r i a l histories and t h u s a greater legacy of contaminated land. In some cases public authorities have powers to obtain funds from landowners. In other cases, such as in France, a fund paid into by industry is used to clean up sites where no liable party can be identified (but the absence of retroactive liability p r o v i s i o n s means the
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French scheme is far smaller than the U.S. Superfund). The Parliament seems set to accept that EU law should not touch on the thorny issue of past pollution. "There is no need for legislation at the European level on damage from the past," Alber's proposal states. "To remedy such damage economic interest groups and the state should conclude voluntary annual agreements specifying the measures to be taken to remedy the damage." The Economic and Social Committee, a consultative EU institution comprising business, community, and labor representatives, has also issued its opinion on the Commission's Green Paper. "If liability for environmental damage is not uniform throughout the Community, some operators will be obliged to make a greater or lesser degree of financial reparation for the damage they cause," it says. The paper goes on to warn of "ecological dumping" if the laws are not harmonized. For example, German chemical companies could choose not to operate in Germany because of its tough 1990 law on environmental liability. The chemical industry would, of course, be deeply affected by any EU laws on environmental liability. At CEFIC, the industry's European federation, Jean-Marie Devos welcomes the distinction drawn by Alber between past and future environmental damage. The chemical industry also sympathizes with moves to harmonize environmental laws across the EU to create a level playing field. But CEFIC is alarmed at the proposed system of absolute liability. Devos says liability must be linked to operational control of the activity in question, or else the "polluter pays" principle becomes meaningless. "There must be at least some evidence that the company caused the damage," he complains. Julian Rose is an environmental and technology writer based in London.
Environ. Sci. Technol., Vol. 28, No. 5, 1994
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