Remedies and Remediation: Foundations Issues in Environmental Liability

DOIhttp://doi.org/10.1111/j.1468-2230.1995.tb02038.x
Publication Date01 September 1995
AuthorJenny Steele
THE
MODERN LAW REVIEW
~~
Volume
58
September
1995
No.
5
Remedies and Remediation: Foundational Issues in
Environmental Liability
Jenny Steele
*
An
emerging debate
Issues of environmental ‘liability’, concerned principally with attribution of the
costs of pollution, have begun to take a central role in discussions of environmental
policy. But among the many questions raised, some of the most fundamental have
received less emphasis than they deserve. One of these fundamental questions is
the very meaning to be attached to the ‘costs’ of pollution.
On this issue, the European Commission has focused on ‘restoration’ of the
environment, and in doing
so
has understood the ‘costs of pollution’ to extend to
the costs of remedying damage where this is considered appropriate.
As
such, the
costs of environmental restoration
are
included within the range of costs which can
be recovered through the mechanisms of civil liability. If this is the case, however,
it is important to consider how (if at all) such restoration might be linked with the
compensation function with which civil liability, including liability at common
law, has generally been associated. The UK Government has taken a rather
different, more cautious, approach both to restoration as an element in
‘environmental costs,’ and to the role of civil liability.
A
broader question can
therefore be identified, concerning the connection between existing liability
structures and the new interest in environmental restoration or (to use the term
employed in relevant UK documents) ‘remediation.
Some of the differences between the EC and
UK
approaches in this respect are
reflected in the subject-matter on which their policy-making discussions have
recently focused. The European Commission has set out to take a broad approach
to environmental damage: a Commission Green Paper on Remedying
Environmental Damage was published in
1993,’
which referred both to high
profile single instances of accidental pollution (such as oil spillages) and to the
more widespread problem of non-accidental activities, which cause gradual and
pervasive pollution. The latter category includes damage caused by emissions
*Lecturer in Law, University of Southampton.
Much of the initial research for this article was carried out during a period spent as Visiting Scholar at the
University
of
Toronto in Autumn 1994. My thanks are due to the Dean and the Faculty
of
Law at the
University
of
Toronto; and to the University of Southampton
for
making
the visit possible.
I
would also like
to thank Tim Jewel1 for his invaluable and unstintingly generous help.
1
COM(93)
47
final: referred to here as ‘the Green Paper.’
@
The
Modern
Law Review Limited
1995
(MLR
585,
September). Published by Blackwell Publishers,
108
Cowley Road,
Oxford
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and 238 Main Street, Cambridge, MA 02142, USA.
615
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Modem Law Review
[Vol.
58
affecting air quality, the presence of hazardous substances in
soil,
and the pollution
of ground and surface waters. In general, the
UK
Government has continued to
prefer a piecemeal approach to environmental questions, and in particular to give
separate consideration to particular classes of polluting activity (for example, the
disposal of waste), or to the pollution of particular environmental media (land, air
or water).* Given this approach, for our purposes the most pertinent policy
debates at
UK
level are those which have related to contaminated land. This
subject was one of the key concerns which motivated the EC Green Paper and the
same issue has prompted high profile activity in the United
state^.^
In the
UK,
the Government’s evolving views on how to approach contaminated
land can be pieced together from a series of consultation and discussion
documents, and legislative activity. The problem of contaminated land was the
subject of a report by the House of Commons Select Committee on the
Environment published in 1990,4 and
an
indication of the Government’s views on
the matter can be derived from the Government’s response to that re~ort.~
Contaminated land was also a key issue in the Government’s general response to
the Commission’s Green Paper on Remedying Environmental Damage, in October
1993 (the ‘Response’),6 and its views in respect of contaminated land in
particular were further developed in a Department of the Environment
Consultation Paper,
Paying
for
Our
Past,’
which continued many of the themes
of the Response. Finally, an Environment Act has recently been passed which
includes additions to the Environmental Protection Act 1990, relating specifically
to contaminated land.* Throughout the series of documents
in
which Government
policy has been articulated and developed, contaminated land has been treated as
essentially constituting a problem
of
‘historic’ poll~tion,~ with the implication that
this issue is separable from issues about the control of current polluting activities.
This forms something of a contrast with the approach of the EC Green Paper and
has contributed to the
UK
Government’s ability to treat ‘remediation’ and
traditional liability questions as separate.
lo
2
3
4
5
6
7
8
9
10
There are signs that a more integrated approach is recognised, at least rhetorically, as the way
forward, with the introduction of (limited) ‘integrated pollution control’ in Part
I
of the Environmental
Protection Act
1990:
see
Purdue, ‘Integrated Pollution Control in
the
Environmental Protection Act
1990:
A Coming of Age of Environmental Law?’
(1991) 54
MLR
534.
After a certain amount of
evasion, the Environment Act now also recognises that pollution of one medium
(in
this instance, land)
can also seriously affect other media (in
this
case, groundwater).
The ambitious legislative solutions which were adopted in the United States have been accompanied by
a great deal of controversy. Some of the difficulties experienced there are touched on below:
see
text to
ns
75
-
79.
1st
Report
of
HC Environment Committee, Session
1989-90.
Government Response to
1st
Report of HC Environment Committee, Session
1989-90
(July
1990),
Cm
1161.
Response to the Communication from the Commission of the European Communities
(COM(93) 47
final) Green Paper,
Remedying Environmental
Damage,
8
October
1993.
A rather more receptive
discussion of the Green Paper
can
be
found in the 3rd Report of the House
of
Lords’ Select Committee
(1993
-
94
session),
Remedying Environmental
Damge
(14
December
1993).
March
1994.
The Environment Act
1995
was introduced as a Lords
Bill
and received the Royal Assent on
19
July
1995
(Bill
No
85,
Session
1994-95).
Its most prominent purpose is the creation of a unified
‘Environment Agency’ for England and Wales, and a separate single agency for Scotland.
This is obviously represented in the title of the Consultation Paper,
Payingfor Our Past.
The substance
of the
UK
Government’s approach to contaminated land will be considered further below.
This question of
the
separation
or
continuity of ‘remediation’ and traditional private law forms of
liability is one of the central themes of
this
article, and will
be
elaborated throughout. As far as
‘historic’ pollution is concerned, the precise boundaries of any such category would be difficult to
define.
For
example, does the definition of this category depend on the polluter being a previous
occupier?
Or
does it suggest a change in technology
or
in pollution standards?
UK
discussions have
616
0
The Modem Law Review Limited
1995

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