The polluter pays principle and the remediation of the land

• Author: Emma Lees
• Position: Department of Land Economy, University of Cambridge, Cambridge, UK
• Pages: 2-20

The polluter pays principle and

the remediation of the land

Emma Lees

Department of Land Economy, University of Cambridge, Cambridge, UK

Abstract

Purpose – The purpose of this article is to examine the national law regimes related to the remediation

of contaminated land.

Design/methodology/approach – The methodology used is comparative. Models for different

systems are described on the basis of varying interpretations of the polluter pays principle. The regimes

present in the Member States are then analysed to see which model they have adopted. A comparator

from each model group is then considered.

Findings – This article presents three key ndings. First, it concludes that the extent to which

additional national legislation relating to environmental damage is permitted, which depends upon the

notion of “more stringent” legislation, is incoherent where more than one interpretation is given to the

polluter pays principle. Second, the different interpretations given to the principle undermine

harmonisation. Finally, this has wider implications for how we justify liability for contaminated land.

Originality/value – This comparative study of the interpretation of the polluter pays principle,

through its implementation in Member States, provides a valuable and novel insight into environmental

liability regimes in Europe. It also demonstrates the different type of regimes that are developed on the

basis of such different interpretations. Although the different national attitudes to contaminated land

policy and remediation have been considered before, this article adds to this debate by suggesting a

central cause of such variation in the shape of different interpretations of a principle of the European

Union.

Keywords Environmental, Liability, Contamination, Pays, Polluter, Principle

Paper type Research paper

Introduction

The purpose of the Environmental Liability Directive (“ELD”) is to establish a

framework of environmental liability, based on the “polluter pays” principle, to prevent

and remedy environmental damage (European Commission, 2006,p.1;Waite, 2006,

p. 67). This goal is threatened by the variation in Member State liability for remediation

of land, which sits alongside the ELD in the Member States. When the legislation in the

Member States related to contaminated land is examined, it becomes clear that the

Member States prefer to extend liability beyond the liability of the polluter. This is

neither a mere difference of degree with the ELD, nor can it simply be dismissed as

differing liability for different problems. Rather, it represents a profound conict in

understanding as to the operation of the polluter pays principle. A comparative study of

the legal mechanisms in place across Europe demonstrates different models of liability

for contaminated land, and shows that the intuitive appeal of the polluter pays principle,

once translated into law, becomes malleable, contested and conicted. This raises a

signicant further question: wherein lies the appeal of the polluter pays principle, and

does the existence of supplementary legislation undermine that appeal? If so, perhaps

The current issue and full text archive of this journal is available on Emerald Insight at:

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IJLBE

8,1

2

Received 2 November 2014

Revised 11 June 2015

Accepted 20 July 2015

InternationalJournal of Law in the

BuiltEnvironment

Vol.8 No. 1, 2016

pp.2-20

©Emerald Group Publishing Limited

1756-1450

DOI 10.1108/IJLBE-11-2014-0033

alternative justications, including obligations of stewardship, are required to explain

liability associated with land damage.

This article considers the network of regulation, which extends across the Member

States concerning remediation of contaminated land, to assess whether the network is

one that can coherently sit alongside the ELD and its invocation (and interpretation of

the polluter pays principle). It will be shown that across Europe, there is a signicant

variation in models for liability for contaminated land. This has inevitable results for the

harmony of the ensuing system, and for the relationship between national regimes for

the remediation of contaminated land and the ELD, and is therefore signicant for the

success of both the polluter pays principle in general (as a principle of both liability and

economics) and of the ELD. In essence, the Union’s interpretation of the polluter pays

principle is not shared by the Member States. This is not because their laws are

explicitly or implicitly based upon different models of the polluter pays principle as

such. Rather, the conict emerges because the very existence of the different models for

liability results in conict with how the ELD, and the European Court of Justice (ECJ) in

its consideration of the polluter pays principle, understand the working of that principle.

This undermines the harmonisation of the polluter pays principle as a principle of Union

law, and the harmonisation of environmental liability in relation to contaminated land of

course, but it also does something more fundamental than that. This divergence

threatens to undermine the coherence in reliance on the polluter pays principle by the

institutions of the European Union (EU).

1. A patchwork system and incoherence in justication

It has recently been noted in the implementation report by the Directorate General (DG)

for the Environment of the European Commission (Bio Intelligence Service, 2013a,

2013b) that the implementation of the ELD is patchwork (the full report emerging from

this process is still to be completed (European Commission, 2014a,2014b). There is a

signicant variation across the Member States in relation to not only the denition of an

operator (a variation explicitly permitted by the Directive itself, Article 2(6)), but also the

existence and development of a register of damage, the publication of data in relation to

environmental damage, the degree of access to such data and the repeal of overlapping

legislation (Stephens & Bolton LLP, 2013,p.6).

A number of different factors are cited in the Commission report to explain the

variation among the Member States. One primary factor relied upon in this report,

however, is “the state of development of environmental law in individual Member

States” (Stephens & Bolton LLP, 2013, p. 6). Indeed, when the transposition of the ELD

into the relevant legal system is examined, it becomes clear that, for the most part,

existing legislation is left intact, with the ELD superimposed onto that system, leaving

sometimes more stringent, and importantly, very different legislation in place. The

provisions of the ELD then tend to take only a residual role (albeit that in some States,

the ELD will take precedence, e.g. Denmark[1]). Thus, the state of development of

environmental law in the particular legal system has necessary consequences on the

overall system of liability for contaminated land. More profoundly however, it is argued

that the state of development is a symptom, rather than a cause, of different approaches

to environmental justice present in the Member States. This more profound variation is

one which is not “papered-over” by the harmonising attempt of the ELD. The purpose of

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The polluter

pays principle