A “compensation right” for the victims of pollution: empowerment or threat?

By Madalina Popirtaru, ClientEarth environmental democracy lawyer

EU lawmakers are currently discussing potential new legal provisions which would introduce a compensation right in three EU environmental legislative acts: the Industrial Emissions Directive, the Ambient Air Quality Directive and the Urban Wastewater Directive. The provisions proposed by the European Commission aim to overcome the challenges faced by victims of unlawful pollution to effectively request financial remedies for the health damages they suffered due to certain types of pollution.

The provisions would adapt the burden of proof between the claimant and the person alleged to be liable for the pollution. This way, the claimant would no longer have to exhaustively demonstrate that the pollution resulting from the breach caused its health damage, which tends to be very difficult, if not impossible, in practice. The compensation could be claimed from the person responsible for the violation of the legal provisions which ensure that the pollution does not occur. This could be a Member States' competent authority and/or, as the case may be, a large-scale industry operator.

This article presents the main elements of the proposed “compensation right” clause and a few considerations as to why EU environmental legislation and people affected would benefit from such a provision.

The proposed provisions

Each of the three proposed "compensation right" clauses has its particularities, shaped by the area in which it is envisaged to apply (ie. industrial activities, ambient air quality, urban wastewater), but generally, the main rules of how it would work are the same in all the three pieces of draft legislation.

Essentially, the claim can be successful solely if several mandatory conditions are fulfilled:

1. There is an individual who is suffering from a health condition, which is demonstrated by relevant supporting documentation (e.g. uncontested medical certifications);
2. There is a violation of certain provisions of at least one of the EU laws above-mentioned, whose the aim is to ensure that pollution does not occur: the individual needs to identify and provide full evidence for the specific breach(es) of law;
3. The individual would have to provide some evidence to support the causali link between the health damage and the result of the violation in a reasonable manner. In this sense, the claimant's evidence to support the claim is satisfactory if it shows that his/her health damage is associated with the result of the violation. Then, the individual's health damage is presumed to be fully or partially the result of the pollution deriving from the violation of the specific EU legislation.
4. The competent authority/ the large-scale industry operator is not able to rebut the presumption that the health damage is the consequence of the pollution that occurred following its law violations. In this sense, the defendant has the right to show that there is no link between the individual’s harm and the violation that it performed and thus have the claimant’s request dismissed.

In summary, the individual needs to identify the specific violation of law performed by the competent authority or industry operator. The alleged violation of law also needs to be associated with the harm suffered by the individual, this being supported by relevant evidence. Only then the burden shifts on the defendant to prove that there has been no violation. However, in response the defendant still has the right to prove that in fact, the pollution did not cause the alleged harm.

Comment

The strength of this proposed clause resides in the inclusion of an adapted burden of proof and a presumption concerning the health damage and the violation of specific environmental obligations. Both the adaptation of the burden of proof and presumptions are legal tools frequently used to symmetrize the powers of proof of the parties involved, when they are unequal.

Currently, victims of pollution face big challenges in demonstrating that the cause of their health damage is caused (fully or partially) by certain types of pollution. This is due to the high threshold of the standard of proof that must be met in court when submitting such allegations, which makes the exercise of this right practically impossible or excessively difficult. The lack of information easily available for the claimant to show the dimension of the pollution, as well as the scientific uncertainty in general, are contributing factors to the current difficulties in successfully submitting a compensation claim.

There also appear no barriers to introduce such a provision: The EU legal framework is already using such concepts in other areas of law where it is impossible for the claimant to prove the allegations. Examples are Article 8 of the Equal Treatment Directive 2000/43 and Article 17 of the Antitrust Damages Actions Directive 2014/104, in which the burden of proof is adapted for the benefit of the "weaker" party.

Concerning national legislation, according to a comparative study by the British Institute of Comparative and International Law commissioned by ClientEarth, the legislation of the six studied Member States (Bulgaria, France, Germany, Italy, Netherlands, and Poland) is ready to integrate such an adapted burden of proof and the use of presumptions in the context of the Industrial Emissions Directive. There is no legal barrier at the national level in incorporating such legal concepts in the environmental law area. As the Study shows, there are already other areas of law in which such concepts have been integrated (e.g., in the antitrust EU law, antidiscrimination EU law).

The proposed “compensation right” clause would enable a higher degree of environmental protection in the EU: By empowering the victims of pollution with this right to hold polluters liable, and by adding a financial incentive for the responsible persons to comply with the obligations contained in the above-mentioned Directives. This represents a unique opportunity for the European legislation to provide support to the victims of pollution by creating a safer European environment to live in.