The Polluter Pays Principle

The Polluter Pays Principle implies that persons who are responsible for pollution are made to pay the cost of the measures necessary to avoid or reduce it. Such a principle was generated from the principles of the civil code, i.e. any damages arising from the act/omission of the individual will be liable for environmental damages. Instead of leaving it wide as the civil law does, environmental law, specifies that it is the polluting party and not only who is negligent who has to bear the financial and any other liability. The regulations under the Environment Protection Act (EPA)1 include punishments2 for who degrades the environment.

In legal terms who is the polluter?

Part 1 Article 2 of the EPA defines the term pollution and since no definition of polluter is established in the Act, such offender can be described as who degrades or pollutes the environment in some way or another as established in article 2 of the EPA.

Pollution means the direct or indirect (such as slurry of pigs from a pig farm) introduction by man (only anthropocentric activities are liable to damages – because conversely one can have pollution by animals such as methane from cattle) into the environment of substances, organism, (such as the introduction of an alien specie, which can have a damage effect because it can effect natural flora), genetic material (what is in the nucleus not only chromosomes) or energy (defined in the interpretation provision of the EPA) which are likely to cause hazard to human health, harm to living resources or to ecosystem, or to damage amenities (depriving the person from enjoying the environment for instance good quality air) or to interfere with other legitimate uses (such as when you deprive the use from resources e.g. you cannot withdraw water from the water table) of the environment.

What does the word pay imply?

Article 9 (2) (n) is the translation of the polluter pays principle in substantive terms. It enables the Minister responsible for the environment to stipulate criminal punishments for any act or omission which is tantamount to the degradation of the environment, where the offender will be liable to a criminal offence not only in monetary terms such as a penalty not greater than a fine (multa) of one hundred liri but it can go in both ways meaning imprisonment for a term not exceeding two years. Therefore article 9 (2) (n) lays down punishments. It is not only a criminal offence, because it will give rise to civil damages as well.

This provision3 establishes that it is the government who takes the fine and such fine must be due to the government as a civil debt being the bonus paterfamilias of the environment. Every fine of the courts goes into the consolidated fund. The same provision stipulates that if a person commits a subsequent offence he shall be liable for double the fine and the maximum fine that may be established by such regulations shall be two hundred thousand liri.

This provision establishes a new concept in Maltese law, what is referred to as corporate liability. The provision establishes that if the person who polluted is a director, secretary or manager of a body corporate, the body corporate such as a public corporation will be liable in solidum (This means the person who polluted together with the body corporate) for the payment of the civil debt.

Apart from the above provision, the polluter pays principle is seen in the Act4 from the minister’s power to prescribe the charges and fees that may be levied by the Authority…. . The polluter under the act5 has to make good for any damage to the environment by any activity which may require a licence under the EPA. Such a provision is to be linked with article 11(3). This is because although you may have a licence you may act in breach of any condition attached to any such licence and in consequence harm would be done to the environment, the offender shall be liable to a multa of not more than 25,000 liri and to imprisonment not exceeding 6 months or both.

Who is responsible for the pollution? ; The consumer or the producer? Who is to bear the burden? The trend of the EU is to put liability on who produces the object, i.e. the producer bears the liability. In law you have joined responsibility. Therefore the sole responsibility does not only fall on the producer, because the consumer has a choice, that of choosing from non polluting products. However the EPA establishes producer liability, particularly vis–vis waste products. Since this act embodies rules on threshold levies of waste6 and quotas7 to cite some examples, it is implicit that who is to breach such provisions and who is to pollute in such cases is the producer.

The EPA by taking a broad definition of the word pollution8 and by covering all forms of pollution9 and by establishing that any person who acts in contravention of this act 10 (which tends to signify that by such a contravention harm would be done to the environment) does not allow the degrader of the environment to escape any legal responsibility cioe’ liability due to the fact that all types of pollution are sanctioned together with any type of environmental damage.

Besides criminal and civil offences the EPA provides for an action for environmental damages. (This means when damages to the environment per se occur and such damages cannot be quantified into money terms). To cite an example the pollution of the spring gives rise to civil damages. In consequence the spring pollution will make a type of specie die. This will constitute an act for environmental damages since the specie cannot be put again to live. This will result in loss of biodiversity and impairment of the area (damage caused – damnum emergens) which cannot be qualified and quantified into lucrum cessans (This means that from the thing lost there is no profit since the wild life in question does not have a commercial value).

Part X of the EPA is about the enforcement provisions. Such provision makes it clear that that the polluter is to pay to the Environmental Fund sums which shall be settled by a prior agreement and in the absence of agreement; the sum is to be fixed by the Court arbitrio boni viri. (The Court is to decide on the amount since it is difficult to qualify to amount of environmental damage). In fact under article 24 (1) Part X the person who causes damage to the environment has to make good any damages to any person or authority apart from the fact that he is liable to pay to the Fund (which receives revenues from fines imposed) established under Part VIII of the EPA which means that such action will not eliminate any civil liability. In such a case the enforcement takes place due to the non observance of any law or regulation or by his negligence or willful act or inability in his art or profession.

The EPA states that an action for damages “shall be prescribed by the lapse of eight years.” 11 Such years seem to start running from the finding of the damage. According to this provision any court cases for damages against individuals on behalf of the government are to be instituted by the Fund chairman.

The EPA establishes that by a voluntary settlement described as compromise penalty12, the offender may opt to settle by a paying a fine to the environmental fund and criminal charges against him will be dropped avoiding going to the Court, and the money which goes to the fund is to be used only for environmental purposes 13.

The polluter pays principle is executed from the sums of money that go into the Environmental Fund. Article 19 (4) (c) speaks about the sums received by the Authority. The Authority when granting developing permits will claim a sum of money for the damage caused to the environment due to such factors as the dust and rubble, and this money will be used to rehabilitate the environment.

The polluter pays principle is indirectly adopted as well in the Act14 because the environmental inspectors upon production of evidence that any person is not complying with this Act, will issue stop orders to any person. Such person will surely bear a cost from such an impediment to continue operations even though for an indeterminate period of time.

Conclusion

It is the government’s legal duty to protect the environment and to abate the problem of pollution and any other form of environmental degradation in Malta and beyond in accordance with the polluter pays principle… However one is to note that the polluter pays principle is not directly enforceable in any court as is explicitly declared in the EPA 16, however such a principle together with others is fundamental and has to be used in the interpretation of the act and any other environmental law.

There is no doubt that, as it has been observed from the EPA legal provisions, the polluter is to face heavy fines and may as well face imprisonment. It is quite easy to pollute the sea or destroy a valley. In the case of marine pollution, cleaning is almost always costlier than the imposed fines and building a new valley is impossible. That’s why in all things, environmental prevention is always better than cure.