Polluters: Strict Liability Or Fault-Based?

Environmental law covers a wide range of topics, including global warming, climate change, and pollution. Strict liability in environmental law holds individuals or entities responsible for environmental harm caused by their actions, regardless of fault. Civil liability conventions are seen as instruments that implement the 'polluter pays principle', which pushes the costs of pollution onto the polluter. This is in contrast to general tort law, which is based on fault or negligence. The concept of strict liability in environmental law has evolved from cases such as Rylands v. Fletcher, which introduced the doctrine of strict liability for harm caused by hazardous activities. This principle applies to situations where dangerous substances escape and cause damage, such as in waste disposal or chemical production. While strict liability simplifies victim compensation and encourages safer practices, it also raises moral concerns and shields operators from excessive claims.

Strict liability in environmental law

For example, in the case of Branch v. Western Petroleum Inc., the defendant company disposed of contaminated water in underground wells, but due to the permeable geology of the area, the pollution seeped into the plaintiff's wells. The court held the defendant strictly liable for the water pollution that escaped from its land, highlighting that keeping noxious chemicals on one's land is an abnormally dangerous activity that can give rise to strict liability.

Strict liability is particularly relevant in environmental law as it ensures that those engaged in activities with potential environmental impacts, such as waste disposal or chemical production, are accountable for any resulting harm. This promotes the prevention of environmental harm and ensures that responsible parties bear the costs. It also acts as a deterrent for risky behavior by imposing financial responsibility.

It is important to note that strict liability is distinct from absolute liability, which is a more stringent form with no exceptions or defenses available to the defendant when engaging in hazardous activities that cause harm. Strict liability is also different from vicarious liability, which involves holding one party liable for the actions of another, such as an employer being held liable for the actions of an employee.

International environmental laws also play a role in establishing global environmental liability and addressing transboundary environmental challenges. While civil liability conventions introduce strict liability, they may also shield operators from excessive claims through liability caps, deviating from the full-compensation principle of tort law.

Civil liability conventions

The International Convention on Civil Liability for Oil Pollution Damage (CLC) is an example of a civil liability convention. It was adopted to ensure that adequate compensation is available to those who suffer oil pollution damage resulting from maritime incidents involving oil-carrying ships. The convention places liability on the owner of the ship from which the polluting oil escaped or was discharged. This liability is strict and subject to specific exceptions. The owner may limit liability in respect of any one incident unless the incident occurred as a result of the owner's personal fault.

The CLC requires ships covered by it to maintain insurance or other financial security equivalent to the owner's total liability for one incident. This requirement applies to all seagoing vessels carrying oil in bulk as cargo, but only ships carrying more than 2,000 tons of oil are mandated to maintain insurance concerning oil pollution damage. As of September 2016, 136 states, representing 97.5% of the world fleet, are contracting parties to the CLC Protocol of 1992, which amends the original CLC Convention.

Another example of a civil liability convention is the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention).

International environmental laws

Fault-Based Liability

Fault-based liability, also known as tort liability, implies that a polluter is held responsible for the harm caused by their actions or negligence. This means that the polluter's intent or negligence played a role in the environmental damage. For example, the International Convention on Civil Liability for Oil Pollution Damage (CLC) holds shipowners liable for pollution damage resulting from oil spills. However, they can limit their liability if they can prove that the incident occurred without their fault or was due to a third party's fault. This convention covers pollution damage in the territorial sea and exclusive economic zone of a State Party, applying to ships carrying oil in bulk.

Strict Liability

Strict liability, on the other hand, implies that a polluter is held responsible for the harm caused by environmental pollution, regardless of their intent or negligence. The focus is on the act of pollution and the resulting damage rather than fault. In the context of international environmental laws, the "theory of tolerance limit" has been proposed to redefine the meaning of illegality and identify strict liability for environmental damages. This theory suggests that polluters should be held liable without fault, emphasizing the need for reparation rather than punishment.

Chinese environmental laws, for instance, have grappled with the challenge of determining liability for environmental damage. While the Environmental Protection Law (Trial) of 1979 imposed administrative, economic, or criminal liability for serious environmental pollution, it did not adequately address the diversity of environmental damage. Later, the General Principle of Civil Law, released in 1986, narrowed the scope by stipulating that civil liability arises when individuals violate state laws related to environmental protection and pollution prevention.

In conclusion, international environmental laws employ both fault-based liability and strict liability to address polluters' responsibilities. Fault-based liability considers the polluter's intent or negligence, while strict liability focuses on the harm caused by pollution regardless of fault. These legal principles aim to hold polluters accountable, encourage sustainable practices, and ensure reparation for environmental damage.

The 'polluter pays' principle

The polluter pays principle is a fundamental concept in environmental law, which aims to hold polluters accountable for the harm they cause to the environment. This principle is based on the idea that those responsible for environmental damage should bear the costs of addressing and rectifying the impact of their actions.

Civil liability conventions are key tools that implement the polluter pays principle by shifting the costs of pollution onto the polluter. This approach offers several advantages over national tort laws. Firstly, it facilitates cross-border lawsuits by harmonising domestic tort regimes across contracting states. Secondly, it introduces strict liability, which holds individuals or entities accountable for environmental harm, regardless of fault. This differs from general tort law, which typically requires proof of negligence or fault.

The polluter pays principle is not without its challenges. Civil liability conventions may shield operators from excessive claims through liability caps, deviating from the full-compensation principle of tort law. Additionally, international practice in this area remains inconsistent, as illustrated by Principle 13 of the Rio Declaration, which stops short of mandating strict liability despite its recognition as the most effective regime for compensating victims of pollution promptly and adequately.

The European Parliament has emphasised the importance of effectively implementing the polluter pays principle in the Environmental Liability Directive (ELD). They have called for expanding the scope of strict liability to cover all serious damage to the environment and human health, including situations where damage results from authorised activities or unknown potential risks. However, they also noted the fragmented nature of liability regimes regarding diffuse pollution in EU law, highlighting the need for better clarification and guidance on key legal terms to ensure consistent application.

Strict liability plays a crucial role in the polluter pays principle by removing the need to prove fault or negligence. This approach simplifies victim compensation, encourages safer practices, and acts as a strong deterrent to pollution and environmental harm.

The Rylands v. Fletcher rule

The case involved two parties: Thomas Fletcher, who operated a coal mine, and John Rylands, a mill owner. Rylands had constructed a reservoir on his land to supply water to his mill. This reservoir was built over disused mine shafts connected to Fletcher's mines. When the reservoir was filled, water broke through the old shafts and flooded Fletcher's mines. Fletcher sued Rylands for the damage caused to his coal mines. Rylands was held liable even though he had not been negligent, marking a significant doctrinal shift.

The rule in Rylands v. Fletcher, also known as the "liability rule", imposes strict liability on those found detrimental without requiring proof of a duty of care or negligence. This brought the law into line with that relating to public reservoirs. The rule requires the escape of a thing that arises from a non-natural use rather than the typical interference emanating from the unreasonable use of land. It does not require an act to be continuous, which is usually a requirement for nuisance. The party that can be sued in a Rylands claim is an owner or occupier of land, along with anyone who stores or collects dangerous material.

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