The Polluter Pays

”The Polluter Pays” is a principle of environmental law which was ratified in the Maastricht Treaty. Article 130R of the Treaty provided that four environmental principles would define the European policy on the environment.

One of these principals is that the polluter should pay. This principle provides that whenever possible those who are responsible for causing or permitting pollution should be liable for the clean up costs and the costs of enforcement.

Article 130S of the Treaty required the European Council of Ministers and the EU Commission to set out priority objectives and general action programmes on the environment. The EU Commission identified the following areas as needing specific environmental plans and programmes, and has implemented various Directives to achieve their objectives;

• The prevention and management of waste.
• The removal of toxic and dangerous waste.
• The management of dangerous waste.
• The prevention of the use of packaging waste.

The Polluter Pays principle has been implemented into Irish law by the Waste Management Act 1996, (the Act). The Act follows the trend of most modern environmental legislation in that it increases the civil and criminal liability for environmental damage and should now be of great concern to those who may cause or contribute to pollution.

The list of potential defendants has been extended by the Act so that directors, managers, secretaries, officers of the company or company members can be made personally liable for environmental offences under both criminal and civil law. This effectively pierces the corporate veil so that in the event of a company committing an offence the relevant person in the company responsible can be held personally liable.

A defendant (company/individual) found guilty of an offence under the Act can be fined up to €12.7 million and can be imprisoned for a term of up to ten years or both The Minister for the Environment stated that if a company causes extensive environmental damage, it would not be possible for the shareholders to liquidate the defendant company in order to absolve themselves from personal culpability. This prevents the shareholders or directors from hiding behind the separate legal entity of a company.

The range of people who may initiate a prosecution under the Act has also been greatly extended and for instance local authorities may take proceedings whether or not the offence is committed in the local authorities functional area. Members of the public have a common law right to bring a summary prosecution. In certain circumstances summary prosecutions can be taken by a local authority up to five years after offences have occurred.

Section 12 is a prime example of the incorporation of the Polluter Pays Principle into the Act. This section provides that the costs of prosecution and the expenses incurred in investigating and prosecuting an offence shall, where a conviction is obtained, be paid to the Environmental Protection Agency, local authority or person who brought the proceedings, unless there are special reasons for not so doing. The costs and expenses covered by the section are wide and include the taking of samples and all necessary tests and examinations.

Local authorities can make an application to the court for the payment of fines to the local authorities where a conviction is obtained. This acts as an extra incentive to local authorities to prosecute under the Act.

Local authorities and the Environmental Protection Agency have extensive powers under the Act to enter premises and they can also stop and detain vehicles. They can take samples, carry out tests and surveys, make excavations and require the production of records.

The burden of proof has also been eased under the Act so that it is now easier to prosecute polluters. Once pollution has occurred, it is up to the polluter to prove that they did not commit an offence under the Act and liability for some pollution offences is strict.

Civil liability for environmental pollution has also been extended in recent years. At one stage a polluter was generally liable only to pay damages in negligence, nuisance and/or trespass. Damages were limited to compensating for personal injury and damage to property and defined ownership. Nowadays under the Act, polluters can be made liable to pay the costs of preventing, remedying and/or cleaning up damage to the environment itself, for example, flora, fauna and other natural resources.

The problems which existed in the past regarding who can sue have been addressed and since the introduction of the Act private individuals are no longer limited to suing in the High Court. He or she may sue in the District Court, the Circuit Court or the High Court.

The Polluter Pays principal has developed as a method of requiring polluters to make restitution for the damage caused and also to act as a deterrent for any other offenders. Directors and officers of companies should be conscious of this principle and their personal, civil and criminal liability under the Act. Therefore they should ensure that all the appropriate policies and procedures are in place in their business to ensure strict compliance with their obligations under the provisions of the Act.

For further information or general enquiries contact:
Thomas Simpson
E-mail tsimpson@kilroys.ie
Tel +353 1 439 5600
Fax +353 1 439 5601 / 439 5602

© Kilroys Solicitors July 2002