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INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE and DIRECTIVE 2004/35/EC

UNIVERSITY OF PADUA FACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2013-2014. INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE and DIRECTIVE 2004/35/EC dr. Attilio Balestreri attilio.balestreri@buttiandpartners.com. Index Environmental damage

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INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE and DIRECTIVE 2004/35/EC

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  1. UNIVERSITY OF PADUAFACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2013-2014 INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL DAMAGE and DIRECTIVE 2004/35/EC dr. Attilio Balestreri attilio.balestreri@buttiandpartners.com

  2. Index • Environmental damage 2. The notion of “compensable damage” 3. European Directive 2004/35/EC.

  3. 1. Environmental damage: definition • Commonly, environmentaldamageisconsidered to be anyadverseeffectsproduced on environmentalgoods by an anthropicactivity; • A broaddefinition of environmentalgoodswould include bothnaturalresources, (unitary or integrated), and the servicestheyprovide to the ecosystem, or to humans; • “Environmentaldamage”, ifoneadoptssuchdefinitions, mayrefer to an extremelybroadnumber of differentharms.  what are the characters of an environmentaldamagelegallyrelevantin internationalenvironmental law?

  4. 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;

  5. 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.

  6. 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.

  7. 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?

  8. 2. The notionof “compensable” damage (1) • A so-calledanthropocentricvision; • Environmentalliability discipline hasbeen in the pastmostlyconcerned with damage to persons and propertythroughdamage to the environment; • Insufficientattentionsince 2004 to the so called «environmentdamageper 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 (1992); • LONDON CONVENTION ON CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE (2001).

  9. ? 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 (1992) Concernsoil-carryingships (shipscarrying oil as a cargo). Establishes the liabilityof the ship-ownerfor the damagecausedbyan oil discharge (due toaccidents, faults, sink, etc.)  Compulsoryinsurance.

  10. 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 (1992) 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)

  11. 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.

  12. 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). …

  13. 2. The notion of “compensable” damage: the 80s and the notion of “impairment of the Environment” • So, from the 80s, a new definition of environmentaldamagebegan to develop. There are severalcauses of thisevolution: • Progressive increase in environmentalaccidents’ seriousness; • Increasedattentionaboutenvironmentalaspects; • Rule of International Organizations and media. References to “impairment of the environment” began to be made. With regard to the quantification of environmentaldamageper se themaindifficultyhasbeenmetindefiningwhatitshould be consideredcovered.

  14. 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 law and practice; • 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”.

  15. 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) whatcostsshould be paidifrestorationwerenotfeasible? E.g. In case of irreversibledistruction of the environment? The IOPC Fund (International OilPollutionCompensation Funds), for example, statedthat: “the assessment of compensationisnot to be made on the basis of an abstractquantificationof damage, in accordance with theoreticalmodels” (Resolution N. 3, 1980).

  16. 4. European Directive 2004/35/EC (1) • The Directive focusesprimarily on environmentaldamageper se(new approach) • The Directive concernsenvironmentalliability with regard to:  preventionof the environmentaldamage;  remediationof the environmentaldamage, whenoccurred. The Directive introduces the notions of primary, complementaryand compensative remediation.

  17. 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.

  18. 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.

  19. 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”

  20. 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”

  21. 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 activity 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.

  22. 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 diffuse pollution is covered by the directive only where it is possible to establish a causal link between the damage and the activity of individual operators.

  23. 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 that caused the damage, occurred.

  24. 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. • Authority’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.

  25. 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… 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 informations about any imminent threat of environmental damage; (b) require the operator to take the necessary preventive measures; (c) give instructions to the operator; (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.

  26. 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 possibile measures 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)

  27. 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) give instructions to the operator about measures 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.

  28. 4. European Directive 2004/35/EC (14) ANNEX II – Remedial measures 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 as a compensation 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 as a compensation for interim losses of natural resources and/or services that occur from the date of damage until primary (or complementary) remediation has achieved its full effect.

  29. 4. European Directive 2004/35/EC (15) Definition of Interim Losses We have “interim losses” when 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 achieved full effect. The compensation for interim losses cannot be a financial compensation

  30. 4. European Directive 2004/35/EC (16) • First option: Primary Remediation (returning to baseline conditions). • If it is not possible to achieve a primary remediation: Complementary Remediation (to provide a similar level of natural resources/services). +Compensatory Remediation for the interim losses pending recovery.

  31. 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: - effects on public health and safety; - costs; - possibility to prevent future damage, and avoid collateral damage; - time to achieve the target Etc.

  32. Thank you for your attention

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