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Liability for harm to the environment
Mr. Schmitt begins his memorandum by considering whether a legal basis exists for asserting a human right to a healthy and decent environment: "Our member states' constitutions contain no enforceable provisions granting a right to a healthy environment, though Switzerland recently introduced a new Article 24 septies in its Constitution: " 'The Confederation shall legislate on the protection of man and his natural environment against prejudicial or unpleasant encroachments upon them. In particular, it shall combat air pollution and noise.' "This article has far-reaching effects insofar as it obliges the Federation to legislate. However, it is not intended to create a fundamental right.
Does this c o w have a cause o f a c t i o n ? As legal i n s t i t u t i o n s adjust to increasing e n v i r o n m e n t a l concerns the answer m a y no longer be so o b v i o u s as it once was.
Liability for Harm to the Environment
*The full text, including lengthy citations, is on file at the ICEL library in Bonn. Environmental Policy and Law, I (1975)
An item which received relatively scant attention in the recent debate on the environment held by the Parliamentary Assembly of the Council of Europe was the report of the Assembly's Legal Affairs Committee. This "Report on the responsibility for damage to the environment" offered a resolution, which was adopted by the Assembly, recommending that the Council of Europe's Committee of Ministers conduct a "comprehensive study of civil, criminal and administrative liability for damage to the environment." The committee's report included an explanatory memorandum prepared by Mr. Henri Schmitt, a member of Parliament of the Swiss Confederation. The memorandum incisively summarizes the legal principles which are relevant to assigning responsibility for environmental harm.*
"In the European Convention on Human Rights there is also no provision to guarantee a decent and healthy environment. Thus, an application lodged in 1960 with the European Commission of Human Rights, in which a German doctor alleged a violation of human rights by the discharge of atomic waste into the North Sea, was considered manifestly ill-founded and, in conformity with Article 27 of the convention, declared inadmissible. "Within the framework of the Council of Europe, it has been proposed on several occasions, however, to add a human right to a decent and healthy environment to the existing catalogue of European human rights, especially by the European Conservation Conference, the Parliamentary Conference on Human Rights, the Parliamentary Assembly, and the European Ministerial Conference on the Environment. For the time being, the question is still under study by the Committee of Ministers. "With or without an actionable basic r i g h t , . . , it is plainly visible that one cannot expect to reach a perfectly unpolluted environment but only a reasonably healthy one. How to reconcile technical development with the quality of human life? This should to a large extent be accomplished by the legislator. As far as liability for damage caused to the environment is concerned, the following chapters will show some possible solutions in the field of private, penal and administrative law." Private Law and the Environment
The memorandum goes on to describe the difficulties of applying traditional private law principles in the field of environmental damage: t7
"Damage to the environment is to a certain extent different from other damage in that it is often caused by a great number of individual acts and interferes with the life and rights of an unknown number of persons. It would be difficult to establish a legal relation between the motorist driving through a street and a fiat-owner in that same street who feels obliged to repaint his window frames every year. Damage to window frames is, however, measurable, but how could one measure the damage done to a pedestrian's lungs? Of course, the damage done to one pedestrian by one motor car is infinitesimal but the damage done by all motorists to the health of all those who breathe the air polluted by their cars is enormous. This is one of the main problems when establishing liability for environmental poll u t i o n : . . , the enormous number of polluters and the enormous number of victims whereas the damage done by one polluter to one victim is so small that it is impossible to measure. "Thus the normal provisions of civil l a w . . , often cannot be applied in cases of damage to the environment. In several cases special legislation has therefore been adopted with the aim of combating pollution and to give the individual better protection against it." Mr. Schmitt then surveys the applicable rules of the law of neighbors and of tort law, considering the latter in relation to the polluter-pays-principle:
"Law of neighbours "Under the law of neighbours the most important rule is that interference with the neighbours' property may be prohibited. Damage already caused must be repaired. "In Roman law the owner of a house above another had a claim to stop interference . . . . "Against the neighbour who exceeded certain limits the "interdictum uti possidetis" was given. "A similar right is given to proprietors of persons in comparable positions (e.g. tenants) in almost all legal systems (cf. e.g. Article 679 of the Swiss Civil Code). Also if interference occurs with other absolute rights this action is applicable (cf. para. 1004 of the German Civil Code). A person whose property or health is individually encroached upon by distinct damage to the environment may thus be successful in prohibiting the further performance of that unlawful activity. The injunction is given irrespective of negligence;the absolute liability 18
knowingly cause damage (although they would like to avoid it) or could at least know that they are causing damage, it seems quite in order that the full "However, an injunction cannot burden of its reparation is imposed upon always be obtained. The Federal Court them. This fully complies with the of Justice in Germany refused to issue established principles governing liability. an injunction when a neighbour comIt may, however, already be considered plained about the deposit of buildingas a departure from the principles if a trade machines; it held that purely person is held liable for damage caused ethical feelings were not protected. A by an activity which is admitted by pubmore important restriction is imposed lic authorities pursuant to the legislation. by the administrative rules which fix The polluter-pays-principle applied to certain limits for the admissibility of accidents would even more clearly go noise and pollution. Any activity beyond the general rule of liability for which complies with the rules cannot torts, if in such cases the damage normally be prohibited but a person occurred unexpectedly and without who feels that his rights are being ennegligence. croached upon may nevertheless "In Sweden, the Environment claim compensation. Protection Act of 29 May 1969 para. "An injunction under the law of neigh- 30, provides for far-reaching liability of bours is a relatively effective remedy, the polluter: but it is adequate to combat environ'A person who causes a nuisance by mental damage in a restricted number polluting activity shall provide comof cases only. pensation for such nuisance. However, if the nuisance has not been caused "Law of torts by negligence such compensation "Normally, a person, who by negligence shall be payable only if the nuisance (or, of course, intentionally) commits a is at all substantial and only insofar tort or breaches a statutory duty may be as it could not reasonably be deemed liable to pay damages. The victim has to to be tolerable in view of the cirprove the damage, the negligence and cumstances in the locality or in view the connection between the two. of its general occurrence in com"One may wonder whether the general parable circumstances.' rule of torts is adequate in the specific "It seems that no other member state situations of environmental damage. of the Council of Europe has enacted In some member states of the Council similar provisions applicable to all of Europe, special rules have been kinds of environmental damage. In enacted in this field. the Federal Republic of Germany and in Switzerland strict liability was intro"Strict liability means liability irreduced in the field of water protection. spective of negligence; it goes even furThe first two paragraphs of Article 36 ther than liability for risk, in the case of of the Swiss Federal Act on the protection of water against pollution, of 8 which 'force majeure' frees the responsible person from obligation. The rule October 1971, read: 'Any person who by the exploitation of strict liability can be stated for of his enterprise, by the use of his damage resulting from radiation caused installations, by his acts or by his by atomic energy stations: It is the omissions pollutes water, shall be owner of the installations who is liable.* liable for the damage resulting Liability for risk is intended to be estabtherein. fished for motor vehicle accidents all 'The polluter shall not be liable if he over Europe by the European Convenproves that the damage has been tion on Civil Liability for Damage caused caused by force majeure or by exby Motor Vehicles. treme negligence of the injured or a "Strict liability or liability for risk third person.' seem to be in legal terms, what in the context of environmental problems is "The high value of the environment certainly justifies liability which called the polluter-pays-principle. In a departs from established principles of number of cases, the application of this the law of torts. One should, however, principle would create liability, whereas keep in mind that so far no absolute under the rules of tort there would have liability has been created for interbeen none. As people exercising a polluting activity are persons who ference with human life; does the environment deserve a stronger protec*Cf para. 25 of the German Atomic Energy tion? In any case. it seems reasonable Act (Atomgesetz) of 23 December 1959. that absolute liability be introduced for corresponds to the absolute right which is injured.
Environmental Policy and Law. 1 (19751
damage caused by certain particularly dangerous or prejudicial activities, e.g. for oil transport." Mr. Schmitt goes on to consider other measures which may be taken to supplement traditional tort law remedies and which, like the absolute liability resulting from application of the polluter-pays-principle, are particularly suited for the allocation of environmental risks. He notes the possibility of retaining the traditional negligence standard of liability, but legislatively shifting the burden of proof in this respect. Such a shift would benefit victims of pollution caused by persons unable to prove that they acted with due care. The memorandum also suggests the utility of states adopting environmental protection acts which would set forth general legal principles applicable to environmental cases, and notes the problems which can arise in cases of transnational pollution. Mr. Schmitt points out certain financial requirements which may supplement tort law in environmental cases. He discusses the use of compulsory insurance in dangerous situations where risks are of great magnitude, such as in the operation of aircraft or automobiles. This method of distributing the risks of dangerous activities has been applied in the environmental field with respect to dangers of atomic radiation and of oil pollution caused by ships. It is worth noting, however, that a requirement of insurance may have the disadvantage of lessening the vigilance of one who is engaged in an ultrahazardous activity but is insured against its risks. Another financial mechanism considered is the use of special funds for the granting of compensation in cases where environmental injury is caused by a large number of actors or by persons unknown. Such a fund may be financed, as is required under Article 64 of the Dutch Air Pollution Act, by a specialtax levied on the use of products which contribute to environmental harms of the type to be compensated. Finally, Mr. Schmitt considers the applicability to civil cases of the class action concept: "Besides the owners as such, it could be imagined that a certain number of owners could act before the courts on behalf of the total number of persons concerned without necessarily having a mandate to do so. Such a class action could however be exercised only by virtue of legislation. "In addition, one may think of granting a class action to associations Environmental Policy and Law, I [1975)
defending public interests or interests of groups of individuals. By admitting such action in environmental matters in the Federal Republic of Germany similar provisions are in force in the field of unfair competition public efforts in protecting the environment could be supported." The Use of Criminal Sanctions In his discussion of criminal law, Mr. Schmitt notes that many administrative regulations designed for environmental protection provide for criminal penalties, but that criminal codes themselves provide little basis for action against environmental damage, except perhaps by provisions concerning bodily injury, flooding, etc. This is in accordance with the view that "criminal law as an instrument of environmental policy should have a subsidiary role." The memorandum raises the serious problem of imposing criminal penalties suitable for the control of corporate activities: "As a great deal of environmental damage is caused by factories which are run and owned by corporate bodies, criminal liability of corporate bodies themselves may be of importance. Para. 26.of the German Act on breach of order provides that, in addition to the managers of a corporation, a fine may be imposed on the corporation if the offence was committed when the persons were acting on behalf of the corporation. Section 19, para. 8 of the British Prevention of Oil Pollution Act 1971 reads: 'Where a body corporate is guilty of an offence under Section 3 of this act and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punishe d accordingly.' "Similar provisions seem to be adequate' in order to deal with environmental damage which is economically motivated. The fines should be high enough to discourage companies from infringing the law." Mr. Sckmitt also notes the importance of recognizing the limitations of financial penalties for environmental offenses, which may amount to no more than a licensing of pollution:
"For non-compliance with rules of environmental policy fines may be adequate penalties in cases where the culprit is motivated by economic reasons provided they are high enough to discourage. The French Decree No. 69-380 prescribing anti-noise equipment for machines used in construction provides for fines of from 100 to 200 francs for non-compliances, increased to 1,000 francs in case of repetition of the offence. These amounts seem far too low. "In addition to fines, imprisonment should not be excluded for severe offences against the environment. The Dutch Air Pollution Act, for instance, provides for one year's imprisonment or a fine of up to 25,000 guilders for noncompliance with the obligations of the act. However, the Federal German Environmental Protection Act which came into effect in April 1974 is the most severe legislation, providing for fines of up to 100,Q00 DM and prison sentences of up to 10 years." The Role of Administrative Law The memorandum describes the important role of administrative law in environmental protection, particularly through those planning and control functions which aim to prevent environmental damage, often by regulation at the source of possible harm. Examples given are control of motor car emissions and the Belgian Surface Water Pollution Act, which provides authority to regulate fabrication, importation, sale, and use of products which might pollute surface waters. Although administrative law seeks to prevent harm, it is also equipped with means of imposing liability for harm done. Mr. Schmitt notes that "Administrative liability is based on objective criteria and normally independent of negligence. It is enforced in the first place against a person who has interfered with the legal order. A subsidiary liability exists for the owner of the objects from which interference originates." Several administrative means of responding to environmental damage are mentioned, including the powers of injunction, fine, and requiring that harm be repaired. Where pollution cannot be avoided completely, special duties may be levied for reparative purposes. Thus, "In the Netherlands, under the Air Pollution Act, special duties have been introduced by the Air Pollution (combustible tax) Order. These duties are calculated on the basis of the expected 1g
costs to combat air pollution; they are apportioned to the various combustibles with regard to the air pollution produced by them, and levied accordingly. "A similar duty has been introduced in the Netherlands and the canton of Zurich for the disposal of old cars. A special duty is levied at the first registration of a car and partially or wholly refunded to owners who bring their car to one of the destruction installations." Such charges function as applications of the polluter-pays-principle. The Schmitt memorandum, however, calls for a "more detailed consideration" of that principle, recognizing that application of the principle tends to impose the costs of pollution upon the ultimate consumer of a product, but seeing a danger that such a system could "result in carte blanche being given to those who are prepared to pay for any damage they cause." Mr. Schmitt notes that the force of state regulations cannot extend beyond national frontiers. He advocates harmonization of regulations among and even beyond member states of the Council of Europe, calling attention to the risk of economic and competitive distortions as a result of varying environmental standards and to the obstacle which such variations raise against the free movement of goods. The memorandum suggests the use of "compensatory subsidies" as an interim protection for goods" which comply with the national standards but which are exported into countries where lower environmental standards apply." It is acknowledged that such subsidies might be illegal under the EEC Treaty. In fact, they would seem to be a form of dumping, which might provoke severe criticism by countries competing for such markets.* International Law
With respect to international law of the environment, the memorandum emphasizes efforts to prevent water pollution. The development of law with respect to oil pollution is shown to be. the most thorough, with discussion of the International Conventions for the Prevention of Pollution of the Sea by Oil, on Intervention on the High Seas in Cases of Oil Pollution Casualties, on Civil Liability for Oil Pollution Damage,
*Regarding the French approach to this subject, see the article by Prof. J. Lamarck, later in this issue.
20
and for an International Fund for Compensation for Oil Pollution Damage. The memorandum also catalogues important'provisions of several conventions concerning marine and freshwater pollution of other sorts and recalls certain environmental decisions and recommendations by the Council of Europe and the European Community.
damage whenever compensation cannot be obtained elsewhere; "conduct of official investigations at the request of persons suffering from pollution or noise; "determination of the applicable law in cases of transnational damage; "admission of class actions; "consolidation of general provisions on protection and liability regarding the environment in a single code;
Conclusion
The Parliamentary Assembly's resolution on responsibility for harm to the environment included an urging that member states ratify the above-mentioned international conventions and carry out the environmental policies developed by the Council and the European Community. The Assembly also adopted Mr. Schmitt's recommendation that the Committee of Ministers: "conduct a comprehensive study of civil, criminal and administrative liability for damage to the environment, paying particular attention to the following: "Civil law
"introduction of strict liability or risk liability for environmental damage; "introduction of compulsory insurance for activities liable to cause damage to the environment; "establishment of funds to provide compensation for environmental
"Criminal law
"corporate liability; "severity of penalties; "Administrative law
"harmonisation of environmental standards; "levying of special taxes; "harmonisation of means available to public authorities for combating damage once it has occurred; "improvement of the effectiveness of supervisory machinery." These are all important topics in the law relevant to the environment. Each has been a subject of recent debate in more than one country. It is to be hoped that the Council of Europe's Committee of Ministers takes this resolution and Mr. Schmitt's excellent memorandum seriously and undertakes the study proposed. M.A.M.
European Parliament Acts on Resolutions of Third International Parliamentary Conference At its meeting of 4 November 1974, the Committee on Public Health and the Environment of the European Parliament (hereinafter "the committee") unanimously adopted a motion for a resolution and explanatory statement on the outcome of the Third International Parliamentary Conference on the Environment (IPCE), held in Nairobi on 8- 10 April 1974. The extensive and detailed motion and accompanying statement, reported by Mr. H. E. Jahn, a member of the German Federal Parliament, include many interesting proposals, particularly with respect to the promotion of international cooperation in the environmental field. The motion begins by stressing "the great importance of the Third International Parliamentary
Conference on the Environment as regards more effective parliamentary control of government activities in the field of environmental protection" (§ 7). The motion repeats the IPCE's demand for "an intensification of the European Community's activities in the field of environmental protection, notably coordination with measures to be taken at [the] international level" (§2). Likewise, the motion notes the urgent necessity that parliaments exchange information on environmental protection measures taken in their countries, both to avoid unnecessary duplication of work and to facilitate the broader appfication of exemplary developments in a particular country (§3). It is proposed that "the European Community as a whole Environmental Policy and Law, 1 (1975)
Does this c o w have a cause o f a c t i o n ? As legal i n s t i t u t i o n s adjust to increasing e n v i r o n m e n t a l concerns the answer m a y no longer be so o b v i o u s as it once was.
Liability for Harm to the Environment
*The full text, including lengthy citations, is on file at the ICEL library in Bonn. Environmental Policy and Law, I (1975)
An item which received relatively scant attention in the recent debate on the environment held by the Parliamentary Assembly of the Council of Europe was the report of the Assembly's Legal Affairs Committee. This "Report on the responsibility for damage to the environment" offered a resolution, which was adopted by the Assembly, recommending that the Council of Europe's Committee of Ministers conduct a "comprehensive study of civil, criminal and administrative liability for damage to the environment." The committee's report included an explanatory memorandum prepared by Mr. Henri Schmitt, a member of Parliament of the Swiss Confederation. The memorandum incisively summarizes the legal principles which are relevant to assigning responsibility for environmental harm.*
"In the European Convention on Human Rights there is also no provision to guarantee a decent and healthy environment. Thus, an application lodged in 1960 with the European Commission of Human Rights, in which a German doctor alleged a violation of human rights by the discharge of atomic waste into the North Sea, was considered manifestly ill-founded and, in conformity with Article 27 of the convention, declared inadmissible. "Within the framework of the Council of Europe, it has been proposed on several occasions, however, to add a human right to a decent and healthy environment to the existing catalogue of European human rights, especially by the European Conservation Conference, the Parliamentary Conference on Human Rights, the Parliamentary Assembly, and the European Ministerial Conference on the Environment. For the time being, the question is still under study by the Committee of Ministers. "With or without an actionable basic r i g h t , . . , it is plainly visible that one cannot expect to reach a perfectly unpolluted environment but only a reasonably healthy one. How to reconcile technical development with the quality of human life? This should to a large extent be accomplished by the legislator. As far as liability for damage caused to the environment is concerned, the following chapters will show some possible solutions in the field of private, penal and administrative law." Private Law and the Environment
The memorandum goes on to describe the difficulties of applying traditional private law principles in the field of environmental damage: t7
"Damage to the environment is to a certain extent different from other damage in that it is often caused by a great number of individual acts and interferes with the life and rights of an unknown number of persons. It would be difficult to establish a legal relation between the motorist driving through a street and a fiat-owner in that same street who feels obliged to repaint his window frames every year. Damage to window frames is, however, measurable, but how could one measure the damage done to a pedestrian's lungs? Of course, the damage done to one pedestrian by one motor car is infinitesimal but the damage done by all motorists to the health of all those who breathe the air polluted by their cars is enormous. This is one of the main problems when establishing liability for environmental poll u t i o n : . . , the enormous number of polluters and the enormous number of victims whereas the damage done by one polluter to one victim is so small that it is impossible to measure. "Thus the normal provisions of civil l a w . . , often cannot be applied in cases of damage to the environment. In several cases special legislation has therefore been adopted with the aim of combating pollution and to give the individual better protection against it." Mr. Schmitt then surveys the applicable rules of the law of neighbors and of tort law, considering the latter in relation to the polluter-pays-principle:
"Law of neighbours "Under the law of neighbours the most important rule is that interference with the neighbours' property may be prohibited. Damage already caused must be repaired. "In Roman law the owner of a house above another had a claim to stop interference . . . . "Against the neighbour who exceeded certain limits the "interdictum uti possidetis" was given. "A similar right is given to proprietors of persons in comparable positions (e.g. tenants) in almost all legal systems (cf. e.g. Article 679 of the Swiss Civil Code). Also if interference occurs with other absolute rights this action is applicable (cf. para. 1004 of the German Civil Code). A person whose property or health is individually encroached upon by distinct damage to the environment may thus be successful in prohibiting the further performance of that unlawful activity. The injunction is given irrespective of negligence;the absolute liability 18
knowingly cause damage (although they would like to avoid it) or could at least know that they are causing damage, it seems quite in order that the full "However, an injunction cannot burden of its reparation is imposed upon always be obtained. The Federal Court them. This fully complies with the of Justice in Germany refused to issue established principles governing liability. an injunction when a neighbour comIt may, however, already be considered plained about the deposit of buildingas a departure from the principles if a trade machines; it held that purely person is held liable for damage caused ethical feelings were not protected. A by an activity which is admitted by pubmore important restriction is imposed lic authorities pursuant to the legislation. by the administrative rules which fix The polluter-pays-principle applied to certain limits for the admissibility of accidents would even more clearly go noise and pollution. Any activity beyond the general rule of liability for which complies with the rules cannot torts, if in such cases the damage normally be prohibited but a person occurred unexpectedly and without who feels that his rights are being ennegligence. croached upon may nevertheless "In Sweden, the Environment claim compensation. Protection Act of 29 May 1969 para. "An injunction under the law of neigh- 30, provides for far-reaching liability of bours is a relatively effective remedy, the polluter: but it is adequate to combat environ'A person who causes a nuisance by mental damage in a restricted number polluting activity shall provide comof cases only. pensation for such nuisance. However, if the nuisance has not been caused "Law of torts by negligence such compensation "Normally, a person, who by negligence shall be payable only if the nuisance (or, of course, intentionally) commits a is at all substantial and only insofar tort or breaches a statutory duty may be as it could not reasonably be deemed liable to pay damages. The victim has to to be tolerable in view of the cirprove the damage, the negligence and cumstances in the locality or in view the connection between the two. of its general occurrence in com"One may wonder whether the general parable circumstances.' rule of torts is adequate in the specific "It seems that no other member state situations of environmental damage. of the Council of Europe has enacted In some member states of the Council similar provisions applicable to all of Europe, special rules have been kinds of environmental damage. In enacted in this field. the Federal Republic of Germany and in Switzerland strict liability was intro"Strict liability means liability irreduced in the field of water protection. spective of negligence; it goes even furThe first two paragraphs of Article 36 ther than liability for risk, in the case of of the Swiss Federal Act on the protection of water against pollution, of 8 which 'force majeure' frees the responsible person from obligation. The rule October 1971, read: 'Any person who by the exploitation of strict liability can be stated for of his enterprise, by the use of his damage resulting from radiation caused installations, by his acts or by his by atomic energy stations: It is the omissions pollutes water, shall be owner of the installations who is liable.* liable for the damage resulting Liability for risk is intended to be estabtherein. fished for motor vehicle accidents all 'The polluter shall not be liable if he over Europe by the European Convenproves that the damage has been tion on Civil Liability for Damage caused caused by force majeure or by exby Motor Vehicles. treme negligence of the injured or a "Strict liability or liability for risk third person.' seem to be in legal terms, what in the context of environmental problems is "The high value of the environment certainly justifies liability which called the polluter-pays-principle. In a departs from established principles of number of cases, the application of this the law of torts. One should, however, principle would create liability, whereas keep in mind that so far no absolute under the rules of tort there would have liability has been created for interbeen none. As people exercising a polluting activity are persons who ference with human life; does the environment deserve a stronger protec*Cf para. 25 of the German Atomic Energy tion? In any case. it seems reasonable Act (Atomgesetz) of 23 December 1959. that absolute liability be introduced for corresponds to the absolute right which is injured.
Environmental Policy and Law. 1 (19751
damage caused by certain particularly dangerous or prejudicial activities, e.g. for oil transport." Mr. Schmitt goes on to consider other measures which may be taken to supplement traditional tort law remedies and which, like the absolute liability resulting from application of the polluter-pays-principle, are particularly suited for the allocation of environmental risks. He notes the possibility of retaining the traditional negligence standard of liability, but legislatively shifting the burden of proof in this respect. Such a shift would benefit victims of pollution caused by persons unable to prove that they acted with due care. The memorandum also suggests the utility of states adopting environmental protection acts which would set forth general legal principles applicable to environmental cases, and notes the problems which can arise in cases of transnational pollution. Mr. Schmitt points out certain financial requirements which may supplement tort law in environmental cases. He discusses the use of compulsory insurance in dangerous situations where risks are of great magnitude, such as in the operation of aircraft or automobiles. This method of distributing the risks of dangerous activities has been applied in the environmental field with respect to dangers of atomic radiation and of oil pollution caused by ships. It is worth noting, however, that a requirement of insurance may have the disadvantage of lessening the vigilance of one who is engaged in an ultrahazardous activity but is insured against its risks. Another financial mechanism considered is the use of special funds for the granting of compensation in cases where environmental injury is caused by a large number of actors or by persons unknown. Such a fund may be financed, as is required under Article 64 of the Dutch Air Pollution Act, by a specialtax levied on the use of products which contribute to environmental harms of the type to be compensated. Finally, Mr. Schmitt considers the applicability to civil cases of the class action concept: "Besides the owners as such, it could be imagined that a certain number of owners could act before the courts on behalf of the total number of persons concerned without necessarily having a mandate to do so. Such a class action could however be exercised only by virtue of legislation. "In addition, one may think of granting a class action to associations Environmental Policy and Law, I [1975)
defending public interests or interests of groups of individuals. By admitting such action in environmental matters in the Federal Republic of Germany similar provisions are in force in the field of unfair competition public efforts in protecting the environment could be supported." The Use of Criminal Sanctions In his discussion of criminal law, Mr. Schmitt notes that many administrative regulations designed for environmental protection provide for criminal penalties, but that criminal codes themselves provide little basis for action against environmental damage, except perhaps by provisions concerning bodily injury, flooding, etc. This is in accordance with the view that "criminal law as an instrument of environmental policy should have a subsidiary role." The memorandum raises the serious problem of imposing criminal penalties suitable for the control of corporate activities: "As a great deal of environmental damage is caused by factories which are run and owned by corporate bodies, criminal liability of corporate bodies themselves may be of importance. Para. 26.of the German Act on breach of order provides that, in addition to the managers of a corporation, a fine may be imposed on the corporation if the offence was committed when the persons were acting on behalf of the corporation. Section 19, para. 8 of the British Prevention of Oil Pollution Act 1971 reads: 'Where a body corporate is guilty of an offence under Section 3 of this act and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punishe d accordingly.' "Similar provisions seem to be adequate' in order to deal with environmental damage which is economically motivated. The fines should be high enough to discourage companies from infringing the law." Mr. Sckmitt also notes the importance of recognizing the limitations of financial penalties for environmental offenses, which may amount to no more than a licensing of pollution:
"For non-compliance with rules of environmental policy fines may be adequate penalties in cases where the culprit is motivated by economic reasons provided they are high enough to discourage. The French Decree No. 69-380 prescribing anti-noise equipment for machines used in construction provides for fines of from 100 to 200 francs for non-compliances, increased to 1,000 francs in case of repetition of the offence. These amounts seem far too low. "In addition to fines, imprisonment should not be excluded for severe offences against the environment. The Dutch Air Pollution Act, for instance, provides for one year's imprisonment or a fine of up to 25,000 guilders for noncompliance with the obligations of the act. However, the Federal German Environmental Protection Act which came into effect in April 1974 is the most severe legislation, providing for fines of up to 100,Q00 DM and prison sentences of up to 10 years." The Role of Administrative Law The memorandum describes the important role of administrative law in environmental protection, particularly through those planning and control functions which aim to prevent environmental damage, often by regulation at the source of possible harm. Examples given are control of motor car emissions and the Belgian Surface Water Pollution Act, which provides authority to regulate fabrication, importation, sale, and use of products which might pollute surface waters. Although administrative law seeks to prevent harm, it is also equipped with means of imposing liability for harm done. Mr. Schmitt notes that "Administrative liability is based on objective criteria and normally independent of negligence. It is enforced in the first place against a person who has interfered with the legal order. A subsidiary liability exists for the owner of the objects from which interference originates." Several administrative means of responding to environmental damage are mentioned, including the powers of injunction, fine, and requiring that harm be repaired. Where pollution cannot be avoided completely, special duties may be levied for reparative purposes. Thus, "In the Netherlands, under the Air Pollution Act, special duties have been introduced by the Air Pollution (combustible tax) Order. These duties are calculated on the basis of the expected 1g
costs to combat air pollution; they are apportioned to the various combustibles with regard to the air pollution produced by them, and levied accordingly. "A similar duty has been introduced in the Netherlands and the canton of Zurich for the disposal of old cars. A special duty is levied at the first registration of a car and partially or wholly refunded to owners who bring their car to one of the destruction installations." Such charges function as applications of the polluter-pays-principle. The Schmitt memorandum, however, calls for a "more detailed consideration" of that principle, recognizing that application of the principle tends to impose the costs of pollution upon the ultimate consumer of a product, but seeing a danger that such a system could "result in carte blanche being given to those who are prepared to pay for any damage they cause." Mr. Schmitt notes that the force of state regulations cannot extend beyond national frontiers. He advocates harmonization of regulations among and even beyond member states of the Council of Europe, calling attention to the risk of economic and competitive distortions as a result of varying environmental standards and to the obstacle which such variations raise against the free movement of goods. The memorandum suggests the use of "compensatory subsidies" as an interim protection for goods" which comply with the national standards but which are exported into countries where lower environmental standards apply." It is acknowledged that such subsidies might be illegal under the EEC Treaty. In fact, they would seem to be a form of dumping, which might provoke severe criticism by countries competing for such markets.* International Law
With respect to international law of the environment, the memorandum emphasizes efforts to prevent water pollution. The development of law with respect to oil pollution is shown to be. the most thorough, with discussion of the International Conventions for the Prevention of Pollution of the Sea by Oil, on Intervention on the High Seas in Cases of Oil Pollution Casualties, on Civil Liability for Oil Pollution Damage,
*Regarding the French approach to this subject, see the article by Prof. J. Lamarck, later in this issue.
20
and for an International Fund for Compensation for Oil Pollution Damage. The memorandum also catalogues important'provisions of several conventions concerning marine and freshwater pollution of other sorts and recalls certain environmental decisions and recommendations by the Council of Europe and the European Community.
damage whenever compensation cannot be obtained elsewhere; "conduct of official investigations at the request of persons suffering from pollution or noise; "determination of the applicable law in cases of transnational damage; "admission of class actions; "consolidation of general provisions on protection and liability regarding the environment in a single code;
Conclusion
The Parliamentary Assembly's resolution on responsibility for harm to the environment included an urging that member states ratify the above-mentioned international conventions and carry out the environmental policies developed by the Council and the European Community. The Assembly also adopted Mr. Schmitt's recommendation that the Committee of Ministers: "conduct a comprehensive study of civil, criminal and administrative liability for damage to the environment, paying particular attention to the following: "Civil law
"introduction of strict liability or risk liability for environmental damage; "introduction of compulsory insurance for activities liable to cause damage to the environment; "establishment of funds to provide compensation for environmental
"Criminal law
"corporate liability; "severity of penalties; "Administrative law
"harmonisation of environmental standards; "levying of special taxes; "harmonisation of means available to public authorities for combating damage once it has occurred; "improvement of the effectiveness of supervisory machinery." These are all important topics in the law relevant to the environment. Each has been a subject of recent debate in more than one country. It is to be hoped that the Council of Europe's Committee of Ministers takes this resolution and Mr. Schmitt's excellent memorandum seriously and undertakes the study proposed. M.A.M.
European Parliament Acts on Resolutions of Third International Parliamentary Conference At its meeting of 4 November 1974, the Committee on Public Health and the Environment of the European Parliament (hereinafter "the committee") unanimously adopted a motion for a resolution and explanatory statement on the outcome of the Third International Parliamentary Conference on the Environment (IPCE), held in Nairobi on 8- 10 April 1974. The extensive and detailed motion and accompanying statement, reported by Mr. H. E. Jahn, a member of the German Federal Parliament, include many interesting proposals, particularly with respect to the promotion of international cooperation in the environmental field. The motion begins by stressing "the great importance of the Third International Parliamentary
Conference on the Environment as regards more effective parliamentary control of government activities in the field of environmental protection" (§ 7). The motion repeats the IPCE's demand for "an intensification of the European Community's activities in the field of environmental protection, notably coordination with measures to be taken at [the] international level" (§2). Likewise, the motion notes the urgent necessity that parliaments exchange information on environmental protection measures taken in their countries, both to avoid unnecessary duplication of work and to facilitate the broader appfication of exemplary developments in a particular country (§3). It is proposed that "the European Community as a whole Environmental Policy and Law, 1 (1975)