August 7, 2012
The polluter pays principle can be identified as one of the most significant principles that guide Environmental Law. Although it is complicated and sometimes diverse, it appears to be a main requirement for the regulation of pollution prevention and pollution control. However, many difficulties have risen in its application to both national and international fields, therefore a detailed explanation and identification of the principle is essential to be done.
“If anyone intentionally spoils the water of another…let him not only pay damages, but purify the stream or cistern which contains the water…” (Plato) . This is in a very general way the meaning of the polluter pays principle, more likely the origins of the principle. It applies to any kind of pollution and it has been discussed for many years, or centuries as one may say. But currently it is relevant as a principle of the latest developments of environmental law, mostly related to the European Community Law.
It was the OECD which suggested the policy that the person who was responsible for creating the pollution shall be charged with the cost of the pollution prevention, control and restoration measures, and the UN/ECE one of the first that began to take into account such principle. The OECD defines the polluter pays as a means of “ensuring that the polluter (or resource consumer) should be charged with the cost of whatever pollution prevention and control measures are determined by the public authorities” .
The PPP was gradually adopted in the legislation of the UK, as it was embedded in the Environmental Protection Act 1990 and the Environment Act 1995 . But before that, it has been in the political agenda since 1990, in particular in a White Paper called “This Common Inheritance” . However, the exquisite development occurred when the principle was enshrined into the Maastricht Treaty in 1997, in particular in Articles 174-176 , although it had been around in the Community Law for years.
2.Definitions – Identifying the polluter.
But who is the so called “polluter” that the principle is all about? Before we examine the application of the principle through legislation in detail, it is important to define, what the contexts mean when referring to a polluter and what implications may incur because of the unclear and very broad definition of the PPP.
Looking only in the European Community Law, it is obvious that there are different linguistic versions of the principle. Six languages assert that the “polluter pays”, Greek, Italian, Dutch, Spanish, Portuguese and Danish. The French call it the “polluter-payer principle”, the Germans causation principle and the English believe that the “polluter should pay”.
An excellent example of the difficulty of giving a specific meaning to the polluter is air pollution by the gas emissions of cars. Who is to be considered as the polluter? Is it the car manufacturer, the oil distillers, or the vehicle drivers? “Many people and corporations may have some role to play in the production and consumption cycle that leads to some form of pollution” . Therefore the meaning of the polluter may vary not only geographically but also in any given case.
The indicative case that illustrated the flexibility of the word polluter was R v. Secretary of State for the Environment and Minister of Agriculture, Fisheries and Food, ex parte Standley , where a distinction between significant polluters and others was accepted. Nevertheless, in cases of intentional pollution it is clear that the polluter is the person who permits or creates pollution.
Obviously there can be many disputes when trying to identify the polluter, though it is clear that there are circumstances where the polluter cannot be identified at all or is extremely hard to be spotted. “In cases such as groundwater or coastal water, contamination, forest decline, soil erosion, desertification, climate change, smog in urban agglomerations and numerous pollutions from past activities” , it is obvious that there are several factors that must be taken into account for such an identification to be made. Particularly, when historic pollution is involved, it is impossible to point the finger at someone and name him polluter.
Even though the polluter can be identified in some cases, there is another obstacle that this environmental law principle has to overcome. The damages that the polluter is supposed to pay for are also not outlined or mentioned sufficiently. The principle states that the polluter has to bear the costs of pollution, without explaining what kind of costs a polluter will have to pay.
There are generally four categories of costs. The capital costs, the operating and maintenance costs, the external costs “associated with the environmental damage caused by the construction and operation of these environmental infrastructures” , and finally, the resource costs “associated with the use of the resource that may impinge on other users” . It is also unknown whether the polluter has to cover the whole amount of these costs or pay only a part of them, with the State adding the rest of it.
Problems may also arise in cases where the definition of pollution is not expressed apprehensively. There is a notorious difficulty to prove pollution which sometimes weakens the PPP. That is why it is important to look at the legal aspects of the principle, determining whether it can reasonably be enforced, so that it can make the real polluter pay for the environmental damage.
3.Legislation – National and International – Case law.
The first and most significant thing that should be mentioned about the PPP and its relationship with legislation is that it “is only a principle, it has no legal force and there is no agreed definition that has anything approaching the precision of a statute” . However as we have seen there are plenty of national and international legal documents that have implemented the polluter pays principle and even accepted it as a policy.
As we have seen the principle had been endorsed by the OECD, but it was not binding that all the Member States will have to adopt it. In 1973 the EEC accepted a programme of action which implemented the principle . The Single European Act 1986 was another context that referred to the PPP: “action by the Community relating to the environment shall be based on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that polluter should pay” .
“The principle has been implemented by a numerous of European states, using a variety of tax measures, charges, and liability provisions of national law” but in other countries of the world the principle is not spread widely as in Europe. The 1992 Rio Declaration tried to give the PPP a more international meaning by encouraging the states to take into account that the polluter should bear the costs of pollution.
Nevertheless, there are states other than in Europe that have accepted in their legislation the PPP. One recent example is that of Thailand , which has now put the PPP into its legal science. The Kyoto Protocol had also provided regulations which impose some taxes on different industries which pollute the environment, mostly by air pollution, implementing the PPP in a way.
A variety of cases in UK and European Community Law has also referred to the PPP, when considering applications for damages as a result of environmental pollution. The starting point of the PPP in the UK common law can be easily traced in the foundations of tort law , in particular, in cases of nuisance. The well-known rule of Rylands v. Fletcher established strict liability for all damages in nuisance. Pollution is obviously a type of nuisance, therefore the rule applies in some way the PPP into pollution law.
Cambridge Water Company v. Eastern Counties Leather can be described as a key case as regards the connection of environmental law and tort law. Specifically, it involved a tortious liability for the pollution of a watercourse, where the assumed polluter was a corporate entity. The application was made on grounds of Directive 80/778 on quality of drinking water but the defendants were not liable as the damage was considered as historical pollution.
Many other cases could be used as examples of the PPP, but it is significant to draw a line between cases discussed in the courts and cases of pollution that never reach publicity. The difference between prosecutions and incidents of pollution in the UK seems extremely big . It appears that the cases concerning waste disposal are dominating the prosecutions with very little other kinds of pollution being around. That can be explained at the basis that it is not very easy to trace a polluter who will pollute the air rather than one disposing waste.
But again the prosecutions in comparison to the incidents are very limited. This might mean that the PPP is not achieving its objective, which is to reduce pollution, as polluters remain unpunished because there is no prosecution against them.
Clearly the PPP is not a legal norm that has an absolute meaning and needs to be interpreted in a specific way. Within its flexibility the PPP managed to enter into the legislation and gain a legal value. However, could that principle, even if it is well established, be applied and used as a legal rule? The impact of that question shall be evaluated in detail.
4.Application of the PPP – Can it really be enforced?
The real intention for applying the principle is to prevent or reduce environmental harm. But it appears that the PPP is more likely an economic measure rather than an environmental one. As we have discussed, it is not always possible to identify the original polluter and even when you do he may not be able to pay. This means that the area that has been polluted, will be orphaned with no party claiming responsibility.
Another difficulty is that the polluter may understand the extra costs that he needs to pay as an additional charge to the production costs of the process, which may result these costs to be consequently added to the overall price of the product, therefore the costs of the pollution will be borne to the consumers, who buy the product. The polluter in that case, will continue polluting the environment taking into account that he has a profit from using this kind of tactic and that he is paying what he is supposed to pay for the protection of the environment.
In fact, there are situations where the polluters had been benefited from the polluter pays principle, rather than prevented from polluting the environment. This applies to “Community environmental aid which is given to Member States under the Structural Funds, LIFE, the Cohesion Fund or other budgetary titles, and frequently help to clean up or repair environmental damage” . Especially the Cohesion Fund Countries are an exception to the PPP as it is recognised by the OECD definition of PPP .
In cases of contaminated land the developer will naturally not be willing to pay for the both the land and the necessary corrections for the clean-up of the contaminated site. The cost of such an operation could be huge and logically not beneficial. Some kind of financial banking for the redevelopment which is useful, may be given. Obviously, it is another example where the polluter does not pay for all the damage he had caused, but some aid is provided.
But in circumstances of waste disposal there is the landfill tax which applies to polluters and implies the PPP. It has two main objectives: The reduction of the amount of solid waste disposed to landfill and the reduction of the organic waste which will result the decrease of methane of the waste in landfill. That could be very useful as long as the amounts paid by the polluters are enough to make them reconsider what they are doing.
Generally, there is no exact application of the principle as the polluter pays principle implies the obligation that the polluter will be liable for all the costs of the pollution, without any assistance by the state. Eventually the costs of pollution will be borne by the public purse via taxes, and so the main goal of the PPP, that is the reduction of pollution, is not possible to be completed.
Because the PPP has been implemented in a very weak sense into law, its enforceability is limited. It can be seen as a tortious liability that has either a corrective effect or an economic efficiency. Either way, the principle’s application when possible is a helpful tool always at the services of environmental law.
On the other hand there is another principle, more likely to be called as a legal norm, which can be described as the natural successor of the PPP: The “environmental liability” . It contains many aspects and has been based upon the application and development of the PPP. In particular the definition of the environmental liability includes reference to the PPP. It is “a means by which those who cause damage to the environment are made to pay for putting it right, consistent with the long established polluter pays principle” . However environmental liability is only a policy accepted in the European Union and does not have a worldwide effect.
5.Conclusion – The true value of the principle.
It had been described as a principle, although it has actually earned by its application some legal value, even very limited, but quite important. The polluter pays principle is around and has a great importance if seen from a certain perspective. It is apparently the basis for every legal context that includes a provision for liability for pollution.
It has affected the laws considering the pollution of water, air and land providing the legislators with the appropriate feedback in order to establish norms that can protect the environment from abuse. Although it is doubtful whether its influence had been spread to customary international law, it has clearly been implemented in states of the EC.
The main problem that appears to be holding back the principle, is the financial relief given to many polluters and the lack of identification of the polluters, which results that the public has to bear the costs of pollution. “Unless polluters are heavily taxed or the penalty in terms of costs is loaded with a deterrent sanction, there is little prospect of the polluter pays principle achieving the goal of preventing environmental harm” .
Finally, we can accept that even though there has been a difficulty in relation to the application of the principle or the identification of the polluter, it is beyond any reasonable doubt that the PPP had played a significantly vital role within environmental law, therefore its true value shall be appreciated. The goal of the PPP may never be achieved, but the relief that the principle has provided to the environmental law could be seen as a success.
11.9 Prosecutions1 for pollution incidents, 2001
Environment Agency Regions3
1 Figures are for the total numbers of defendants (companies and individuals) prosecuted in 2001 by type of prosecution.
2 Northern Ireland water pollution figures are for 1999. Includes two cases which are pending.
3 In England and Wales. The boundaries of the Environment Agency Regions are based on river catchment areas and not county borders. In particular, the figures shown for Wales are for the Environment Agency Region for Wales, the boundary of which does not coincide with the boundary of Wales. See Notes and Definitions.
Source: Environment Agency; Environment and Heritage Service (Northern Ireland)
Summary of the main cases referred to in the essay.
i)Cambridge Water Company v. Eastern Counties Leather plc  2 AC 264.
The Cambridge Water Company bought a piece of land which was previously used as a paper mill. The Company began to abstract water from a borehole on the site for public consumption. However, the water was contaminated by a solvent which had leached into the aquifer from a nearby tannery operated by Easter Counties Leather. In 1976, the EC issued Directive 80/778 on quality of drinking water and the water abstracted was found to exceed the limits imposed. Action was brought against Eastern Counties Leather on grounds of nuisance, negligence and the rule of Rylands v. Fletcher. The case went through the High Court and the Court of Appeal, eventually reaching the House of Lords. The HL held that foreseeability in this case is to be determined by reference to the time of the original escape and not the time of the ongoing dispersal. Therefore liability in situations of historical pollution was removed. Eastern Counties Leather were not held to be liable.
“Critics of the judgement say that only very rarely will it impose liability for pollution cases such as this one. However, many commentators feel that the judgement was the only reasonable and practicable step to be taken in the circumstances, because it is unfair to penalise anyone for operations which were considered perfectly normal and effective at the time.”(Wolf, S. & White, A., Principles of Environmental Law, Cavendish Publishing Limited, Second Edition, 1997, p.102)
ii)R v. Secretary of State for the Environment and Ministry of Agriculture, Fisheries and Food, ex parte H.A. Standley and Others and D.G.D. Metson and Others  Env.L.R. 801,  ECR I-2603.
The UK authorities identified the rivers Waveney, Blackwater and Chelmer as water that had been affected by nitrate pollution and designated the surrounding areas of East Anglia as vulnerable ones in accordance to the Directive 91/676. Farmers from the region challenged the decision on grounds that it had to be established first that the pollution was actually caused by nitrates coming from agricultural sources. They argued that they were not the only source that contributed to the pollution therefore the PPP principle should not apply. The European Court held that the polluter pays principle reflects the proportionality principle, and that it is up to each state to implement a Directive and that difference in the Community principles cannot be used to declare another principle void.
List of legislative documents that implement the PPP.
This Common Inheritance (Cm 1200), 1990, para 1.25, p.13
The 1992 Rio Declaration, Principle 16
Environmental Protection Act 1990
Environment Act 1995
Treaty of Amsterdam 1997, Articles 174-176
Declaration on Environmental Action Programme, 1973.
EC Council Recommendation on the Application of the polluter pays principle, 1974.
Single European Act 1986, Article 25.
Convention on Oil Pollution Preparedness Response and Co-operation Preamble 1990.
Conference on Security and Co-operation in Europe, Report of the Meeting of the Mediterranean, CSCE/RMP.6, 1990.
UNCED Conference 1992.
OECD Recommendation C(81) 32 (Final)
Kyoto Protocol 1997, The United Nations Framework Convention on Climate Changes.
Convention on Civil Liability for Oil Pollution Damage 1992, Article 1.
International Convention on Civil Liability for Oil Pollution Damage adopted under the auspices of the IMO in 1969.
Convention on the Establishment of an International Fund for the Compensation of Oil Pollution Damage 1971.
Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960
The Brussels Supplementary Convention of 1963.
UN/ECE Convention on the protection and use of tranfrontier rivers and lakes, Article 2.5.
Convention for the Protection of the Marine Environment of the north-east Atlantic 1992, Article 2.2b.
Fourth Community Action Programme on the Environment  O.J. C 328/1.
Some useful definitions and quotations.
“Environmental liability”, a form of civil liability, is a means by which those who cause damage to the environment are made to pay for putting it right, consistent with the long-established “polluter pays principle”. House of Lords.Selected Committee on the European Union.
“… the person who for his own purposes brings onto his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape…”. Rylands v. Fletcher.
“States should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in practice, bear the costs of pollution, with due regard to the public interest and without unduly distorting international trade.” The 1992 Rio Declaration, principle 16.
Polluter pays principle is a way of “ensuring that the polluter (or resource consumer) should be charged with the cost of whatever pollution prevention and control measures are determined by the public authorities, whether preventive measures, restoration or a combination of both…Exception will only be valid if they form part of transitional arrangements whose duration has been laid down in advance and do not lead to significant distortions in international trade and investment.” OECD, Paris, 1975.
“…to make those who cause environmental damage face the costs of control in full, without subsidy.” This Common Inheritance (Cm 1200, para 1.25, p.13).
“The dominant interpretation of the PPP is that it is an economic principle based on utilitarianism, which aims to create a uniform and fair world trading system.” Alder & Wilkinson MacMillan.
It must be taken into account that “…environmental damage should as a priority be rectified at source and that the polluter should pay.” Treaty of Rome, Article 174(2)(ex. Art. 130(r)).