A David and Goliath fight

April 1, 2023 | By European Environmental Bureau

People’s right to compensation against illegal pollution

When people stand up to industry the battle often resembles a David and Goliath fight. Under current EU rules, people cannot claim compensation for damages to their health that result from illegal pollution. As a result, illnesses caused by pollution, such as cancer and heart disease, and even premature death are going unaddressed. But the EU has an opportunity to ensure people’s rights against illegal pollution.         Maria Luís Fernandes and Olatz Fínez report for EEB

The Industrial Emissions Directive (IED) is the main EU instrument regulating the environmental and human health impact of industry pollution. As it is currently under revision, there is a unique window to ensure the protection of fundamental rights. A proposal to include an EU-wide right to compensation is on the table but in practice the legal fight might reveal itself as uneven. A fairer footing for those claiming compensation would help balance the scales of justice. But will the IED lend a hand to David?

Illegal pollution Goliath 

Up to 70% of EU soil is unhealthy, 60% of European waters have bad chemical status and air pollution leads to 400,000 premature deaths per year – industry pollution has harmful consequences. While we might wish for an end to pollution altogether, industry is actually allowed to pollute within a certain range, taking into account the Best Available Techniques of pollution prevention. Within that range, each installation has a specific limit that determines how much pollution it can emit. This does not mean, however, that such rules are always respected. Illegal emissions are not uncommon and lead to even more damaging pollution levels.

The price for illegal pollution is often paid by people, and with their health. Meanwhile, the sanctions or suspensions that might be imposed on polluters do not help people affected to get reparation for the damage they suffer. To address this issue, the EU law for industrial emissions could provide a legal route to obtain compensation from industry that pollutes illegally. Such a crucial provision would allow for individuals to claim compensation from polluters that emit over their established limits.

“Innocent people and the environment are paying the price of industry pollution with their health. An Italian town has been suffering the consequences of an environmental crisis for decades. A Bulgarian plant is allowed to pollute by obscuring information. Romanian coal plants benefit from working outside the law. Will EU policymakers ensure protection for people, not polluters? Maria Luís Fernandes reports. The Industrial Emissions Directive (IED), the key EU-level legislation to protect communities from pollution, is currently under revision. To protect people …” See Maria Luis Fernnandes, “The Struggle to Survive Industry,” EEB META (1 March 2023).  bit.ly/3TR6IZW

The IED does not cover compensation for health damages and only some Member States address it in their national law. Currently, even if people can claim this compensation, it is dependent on proving the causal link between the pollution and the health damage suffered. However, this proof is often virtually impossible to acquire – for example, due to an extremely limited access to information on pollution levels of installations. This results in a significant imbalance of power and obstacles for individuals to act. So, can the revised IED balance the scales?

A fighting chance for David 

It’s important to strengthen the rights of people affected by pollution. An adaptation of the burden of proof can be the solution: rather than people having to establish the causal link between health damage and illegal pollution, it would be presumed. This means that people would only have to provide enough evidence that of pollution beyond legal limits – not the causality. Instead of burdening David with unreasonable requirements, the new IED could make it the polluters’ responsibility to show their activities were respecting the law.

This would be easy for this story’s Goliath. Compensation would only be granted if operators are not complying with their legal pollution limits – if industry activities prove they are compliant, there is no compensation to fear. In fact, an individual claim for compensation does not oblige industry to suspend their activities. Installations can continue business while they are given the chance to rebut the claims. A tour of EU rules finds similar principles in other regulations that influence industrial activities, such as the Employment Equality Directive or the Antitrust Damages Directive. Should EU law protection of human health not be equal?

“Two myths, one truth – what is the reality of rules for industry? EU decisionmakers reviewing key pollution prevention rules have an opportunity to enact pollution prevention that works for people and the environment. Let’s play – and win – the game of industry rules. We have all been there. You are new and need to get to know the people around you – what better way than a game? You give a couple of statements about yourself, and others need to … “  See Maria Luis Fernnandes, “Two Myths, One Truth – The Game of Industry Rules,” EEB META (8 Feb 2023).   bit.ly/40HGgnp

The revision of the EU law for emissions can give people a fighting chance. It is only just and reasonable to expect that people can hold polluters operating above the legal levels accountable for the damages stemming from their unlawful emissions. Moreover, the right to an effective compensation can be a tool for ensuring compliance as it acts as a deterrent for illegal emissions.

Ensuring a fairer fight for David against illegal pollution can help balance the scales of justice for people and environment. A revised power balance for compensation rights would finally acknowledge the link between environmental pollution and human health damages, as well as offer a stronger legal basis for the protection of people’s fundamental rights. As it stands, it runs the risk of missing its chance.

Balancing the scales of justice 

Laws exist for people – the IED exists to protect people from pollution. It has the potential to become one of the legislative flagships translating the European Green Deal into tangible legal obligations, including the protection of human health. A new compensation right in the IED is a key opportunity to protect fundamental rights by providing a stronger protection for people harmed by pollution.

Originally published by European Environmental Bureau (EEB), META at   bit.ly/3FXaiMl  (15 March 2023).