EU Environmental Law, International Environmental Law, and Human Rights Law

The Case of Environmental Responsibility


In EU Environmental Law, International Environmental Law, and Human Rights Law: The Case of Environmental Responsibility, Armelle Gouritin offers a critical appraisal of EU environmental responsibility law and asserts a new rights-based approach to international environmental law. This book addresses environmental damage, environmental harm, the grounds for environmental responsibility and the exceptions to the responsibility principle. A critical appraisal of EU Directives 2004/35 and 2008/99 is complemented by an analysis of the input of the European Court on Human Rights and international environmental law with a view to filling the gaps identified in the Directives. Gouritin offers a full analysis of the potential and limits of the rights-based approach applied to environmental responsibility.

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Armelle Gouritin (PhD 2012, IES-VUB, Brussels) is Visiting Professor at the Centro de Investigación y Docencia Económicas (México, Aguascalientes). She has published articles and book chapters on EU and international environmental law and the rights-based approach applied to environmental affairs.
1.1 What : subject, questions, thesis and hypothesis
1.2 How: the comparative approach applied in the book. A particular focus on the human rights approach
1.2.1 Identification of gaps in EU environmental responsibility law
1.2.2 Gaps in EU environmental responsibility law, international environmental law, and human rights law: the gap filling exercise. Cases of accumulation, complement, confirmation, and conflict
1.2.3 A few norms of international environmental law as potential gap fillers
1.2.4 Introduction to the interplay between environmental protection and human rights protection
1.2.5 Two human rights approaches applied: environmental substantive rights and environmental procedural rights Environmental substantive human rights Environmental procedural rights
1.2.6 Two human rights approaches not applied: the autonomous right to a healthy environment and environmental technical standards The autonomous (human) right to a healthy and protected environment The setting of environmental standards
1.2.7 Potential and limits of Council of Europe human rights law as a gap filler in environmental law EU law before the European Court of Human Rights: jurisdiction of the Court The EU´s accession to the European Convention on Human Rights: insights for the interplay between EU law and the Convention The potential to address structural causes: fair balance requirement and pilot judgments Questioning the potential: four structural difficulties Questioning the potential: the anthropocentric and individual nature of the rights guaranteed
1.3 Introduction to environmental responsibility
1.3.1 Research limited to environmental responsibility: fault, due diligence and obligation of result
1.3.2 (In)Dependence of environmental responsibility: from environmental law and responsibility law to environmental responsibility law
1.3.3 Three functions of environmental responsibility: compensation, prevention and sanction Restoration and compensation Prevention and deterrence Sanction and punishment
1.4 Foundational difficulties encountered by the EU legislator that are addressed in the book
1.4.1 Introduction to the nature of the Directives: the public-private law divide
1.4.2 Introduction to conflicts of competence at the EU level: explaining the economy and gaps of Directives 2004/35 and 2008/99 Competence justified on EU environmental law rationale Directive 2008/99: conflict between the Commission and the Council Directive 2004/35: conflict within the European Parliament
1.4.3 Introduction to the tensions concerning the Directives’ content which explain the economy and gaps of Directives 2004/35 and 2008/99
Chapter 2. International environmental law and human rights partially conflict but mainly confirm the anthropocentric conceptions of the Directives
2.1 Gaps in the Directives: definition of damage and harm. The anthropocentric and regulatory approaches
2.1.1 Introduction to environmental damage and harm The environmental wrong: damage is distinct from harm. Both are addressed in the book “What”: the environmental elements captured by law, and “how”: legal approaches to the environmental elements The Directives’ definitions as baselines: they extend to risk of damage and harm and more extensive definitions at the national level
2.1.2 Water, air and land: Criticising the choices made by the EU legislator regarding the definition of environmental damage and harm. Directive 2004/35 Generic definition. Art. 2(2) and 2(12) Damage excluded in the dual approach. Art. 3(1)(b) Harm to water resources: an intrinsic approach. Art. 2(1)(b) Harm to waters and the threshold condition. Art. 2(1)(b) Harm to land: an anthropocentric approach. Art. 2(1)(c)
2.1.3 The definition given by the EU legislator in Directive 2008/99
2.1.4 Critical assessment of the definition of damage and harm to water, air and land: limited definition, the threshold condition and the largely anthropocentric approach Limited application to water, air and land The threshold requirement: two criticisms Directive 2004/35 and harm to land: two criticisms
2.1.5 Damage and harm to living species, habitats and ecosystems: the choices made by the EU legislator Damage: the definition given by the EU legislator in Directive 2004/35 Harm: the definition given by the EU legislator in Directive 2004/35 Damage: the definition given by the EU legislator in Directive 2008/99 Harm: the definition given by the EU legislator in Directive 2008/99
2.1.6 Critical assessment of damage and harm to species, habitats and ecosystems Features not covered by the Directives: three common criticisms Directive 2004/35 and damage to protected species and habitats: two criticisms
2.1.7 Definition of damage and harm to natural resource services: the choices made by the EU legislator and critical assessment Definition given by the EU legislator in Directives 2004/35 and 2008/99 Critical assessment: the services and ecological services not covered
2.2 gaps in the directives: the grounds for responsibility. Limits of the public and regulatory approach
2.2.1 Introduction: grounds for responsibility trigger the application and the regulatory approach of the Directives A mitigating factor in case of interplay or concurrence between parallel responsibility regimes The Directives: instrumental to enforce EU environmental law Effects of enforcement matters on the regulatory approach and responsibility paradigm
2.2.2 Directive 2004/35: the polluter pays principle is not a ground for environmental responsibility Directive 2004/35 and the polluter pays principle, an economic principle Explaining the polluter pays principle’s overwhelming presence Rejecting the Polluter Pays Principle as grounding environmental responsibility
2.2.3 Directive 2004/35: risk as the main ground and fault as a subsidiary ground for responsibility The dual approach to environmental responsibility: risk and fault Risk as grounding environmental responsibility: general theoretical aspects EU environmental law framing the application of the risk-based responsibility EU environmental law: three forms of prevention obligations
2.2.4 Directive 2008/99: unlawfulness grounding environmental responsibility Grounds for environmental criminal responsibility: three models Unlawfulness as a ground for environmental responsibility: rejection of the autonomous offence Nine environmental offences Definition of unlawfulness: EU environmental law and obligations binding private persons Mens rea: intention and EU definition of “serious negligence”
2.2.5 Identification of the responsible persons. Directive 2004/35: the operator’s responsibility Operation or control of the activity or legally delegated decisive economic power Requirement to establish the causal link Causal link, presumption and diffuse, widespread pollution: the ERG case. Several responsible persons: multiple party causation
2.2.6 Identification of the responsible persons. Directive 2008/99: natural and legal responsible persons Corporate environmental criminals as main environmental offenders Definitions of legal persons and conditions to have them criminally responsible
2.2.7 Impact and limits of the regulatory approach regarding the grounds for responsibility and identification of the responsible person Shift of paradigm: negative effect for the protection and prevention approaches Gaps in EU environmental law mirrored in EU environmental responsibility law: the “boomerang” effect The “boomerang effect”: limits of substantive EU environmental law EU environmental law underpinned by economic interests of lobby groups Structural gaps of EU environmental law. Four issues
2.2.8 Specific gaps of Directive 2008/99: dependence of environmental criminal law upon administrative law and lack of details in relation to “serious negligence” Dependence of environmental criminal law upon administrative law “Serious” negligence: a useless and contested specification
2.2.9 Specific gaps of Directive 2004/35: grounds for responsibility ignored and the ambiguous notion of operator Rejection of profit and guarantee as grounds for responsibility The ambiguous notion of operator
2.3 International environmental law partialy conflicts with the Directives: natural resources vs. biodiversity
2.3.1 Biodiversity and international environmental law: the Biodiversity Convention The Biodiversity Convention: a brief presentation Definition of biodiversity: Article 2 EU notion of habitats, services and natural resources: a portion of biodiversity The Biodiversity Convention does not recognise biodiversity’s intrinsic value
2.3.2 Biodiversity and the European Court of human Rights The European Convention on Human Rights: limited potential regarding natural resources and biodiversity The purely instrumental value of environmental elements
2.4 International environmental law and human rights comfirm the Directives through policy diffusion: damage and harm to natural resources
2.4.1 Damage and harm to biodiversity and international environmental law: the Biosafety Protocols A brief presentation Objectives, definitions and scope of application Definition of damage and harm The threshold requirement Pollutions having a “diffuse character” The Biosafety Protocols: confirmation through policy diffusion
2.4.2 Damage and harm to biodiversity and the European Court of Human Rights Damage and harm to environmental values: confirmation Pollutions having a “diffuse character”: (partly) conflict
2.5 Conclusion
3.1 Limited scope of application of the Directive: the exclusions of responsibility mechanisms
3.1.1 Directive 2004/35 and “diffuse” environmental damage. Art. 4(5)
3.1.2 Directive 2004/35 and previously identified damage. Art. 2(1)
3.1.3 Directive 2004/35. The facts and activities that generate damage: six exceptions. Art. 4(1), (4), (6), and 8(3)
3.1.4 Directive 2008/99. No responsibility if no illicitness. Art. 3
3.1.5 Directive 2004/35: environmental damage already covered by international Conventions. Art. 4(2) to 4(4) Maritime accidents Nuclear accidents Critical appraisal of deference to international environmental law
3.2 Deference to international law conflicts with human rights : the case of the exclusion of oil-spill damage
3.2.1 The right to property is mobilised to challenge the international regime that applies to oil-spills
3.2.2 The international regime for the compensation of oil pollution damage: A classic example of limited responsibility General overview of the international civil liability regime First limit: the victim’s burden of proof Second limit: the timeframe for considering claims and awarding payments Third limit: definition of damage. Article 1(6) of the Civil Liability Convention Fourth limit: the awarding of compensation. Article 4(5) of the Fund Convention Fifth limit: responsibility channelled to the owner of the ship. Article 3(4) of the Civil Liability Convention Sixth limit: exceptions to override the owner’s limited compensation and channelled liability
3.2.3 Right to Property under the European Convention of Human Rights
3.2.4 The international liability regime is not compatible with the right to property: a conflict case Two cases on limited responsibility and oil-spills: the Pressos and Mangouras cases The application of Article 1 of the first protocol: legal definition of possession and horizontal effect From being party to an international convention to the recognition of interference on behalf of a State The “lawfulness test”: presumption of conformity The “general interest test”: presumption of conformity General functioning of the “proportionality test”: rule, principles, and application criteria Considering the harm suffered and the possibility to obtain compensation in an oil pollution claim
3.2.5 (No)Compatibility of the international regime with right to property: consequences for Directive 2004/35 The (no) compatibility finding extended to the other Conventions deferred to The (no)compatibility finding: matters of legality and legal coherence
3.3 Conclusion
4.1 Gaps in the Directives that have a procedural dimension
4.1.1 Identifying the victim of the wrong: critical assessment of the public nature of the Directives Introduction. The victim of an environmental wrong: who can be the holder of environmental rights Choice of the EU legislator: environmental rights holders without a direct cause of action Criticising the choice of the EU legislator: the trustee as a screen
4.1.2 The development risk defence. Directive 2004/35, Art. 8(4)(b) Introduction to development risks: either grounding responsibility or grounding exceptions to the responsibility principle Two components of the legal definition of development risk: risk inherence and indiscernibleness Legal treatment: a regulatory choice. The clause as a defence or grounding responsibility Choice of the EU legislator: development risks ground an exception to the responsibility principle Legal definitions: inherence and indiscernibleness in Directive 2004/35 Legal definitions: the defence before the European Court of Justice Knowledge quality requirement: the most advanced level of scientific and technical knowledge: the European Commission v. UK case Additional obligations binding the operator to successfully invoke the defence: not possible with Directive 85/374: the European Commission v. France case Additional obligations binding the operator to successfully invoke the defence: possible with Directive 2004/35
4.1.3 The permit defence. Directive 2004/35, Art. 8(4)(a) The EU legislator endorses and justifies the permit defence The permit defence rationae materiae: scope of application and legal treatment
4.1.4 Critical assessment of the permit and development risk defences The permit and development risk defences were highly contested during the legislative process: outcome of the trade-offs Three common criticisms to the development risk defence and permit defence: deficits in harmonisation, coherence and consistency The development risk clause as a defence: questioning the regulatory choice Application and interpretation of development risks: concerns that relate back to the temporal dimension and precautionary principle
4.1.5 Rationae temporis matters that limit the possibility to set environmental responsibility into motion Two temporal limitations: non-retroactivity and prescription The specific temporal limitation clarified in the ERG case
4.2. Impartiality and independence requirements and the discretion of public authorities : a complement case
4.2.1 An illustration: the F
All interested in environmental responsibility, the human rights approach applied to environmental affairs, and the interplay between EU law, international law and human rights law
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