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

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.

• EXECUTIVE SUMMARYCHAPTER 1. INTRODUCTION. METHODOLOGY, TERMINOLOGY, BASIC CONCEPTS AND TENSIONS1.1 What : subject, questions, thesis and hypothesis1.2 How: the comparative approach applied in the book. A particular focus on the human rights approach1.2.1 Identification of gaps in EU environmental responsibility law1.2.2 Gaps in EU environmental responsibility law, international environmental law, and human rights law: the gap filling exercise. Cases of accumulation, complement, confirmation, and conflict1.2.3 A few norms of international environmental law as potential gap fillers1.2.4 Introduction to the interplay between environmental protection and human rights protection1.2.5 Two human rights approaches applied: environmental substantive rights and environmental procedural rights1.2.5.1 Environmental substantive human rights1.2.5.2 Environmental procedural rights1.2.6 Two human rights approaches not applied: the autonomous right to a healthy environment and environmental technical standards1.2.6.1 The autonomous (human) right to a healthy and protected environment1.2.6.2 The setting of environmental standards1.2.7 Potential and limits of Council of Europe human rights law as a gap filler in environmental law1.2.7.1 EU law before the European Court of Human Rights: jurisdiction of the Court1.2.7.2 The EU´s accession to the European Convention on Human Rights: insights for the interplay between EU law and the Convention1.2.7.3 The potential to address structural causes: fair balance requirement and pilot judgments1.2.7.4 Questioning the potential: four structural difficulties1.2.7.5 Questioning the potential: the anthropocentric and individual nature of the rights guaranteed1.3 Introduction to environmental responsibility1.3.1 Research limited to environmental responsibility: fault, due diligence and obligation of result1.3.2 (In)Dependence of environmental responsibility: from environmental law and responsibility law to environmental responsibility law1.3.3 Three functions of environmental responsibility: compensation, prevention and sanction1.3.3.1 Restoration and compensation1.3.3.2 Prevention and deterrence1.3.3.3 Sanction and punishment1.4 Foundational difficulties encountered by the EU legislator that are addressed in the book1.4.1 Introduction to the nature of the Directives: the public-private law divide1.4.2 Introduction to conflicts of competence at the EU level: explaining the economy and gaps of Directives 2004/35 and 2008/991.4.2.1 Competence justified on EU environmental law rationale1.4.2.2 Directive 2008/99: conflict between the Commission and the Council1.4.2.3 Directive 2004/35: conflict within the European Parliament1.4.3 Introduction to the tensions concerning the Directives’ content which explain the economy and gaps of Directives 2004/35 and 2008/99Chapter 2. International environmental law and human rights partially conflict but mainly confirm the anthropocentric conceptions of the Directives2.1 Gaps in the Directives: definition of damage and harm. The anthropocentric and regulatory approaches2.1.1 Introduction to environmental damage and harm2.1.1.1 The environmental wrong: damage is distinct from harm. Both are addressed in the book2.1.1.2 “What”: the environmental elements captured by law, and “how”: legal approaches to the environmental elements2.1.1.3 The Directives’ definitions as baselines: they extend to risk of damage and harm and more extensive definitions at the national level2.1.2 Water, air and land: Criticising the choices made by the EU legislator regarding the definition of environmental damage and harm. Directive 2004/352.1.2.1 Generic definition. Art. 2(2) and 2(12)2.1.2.2 Damage excluded in the dual approach. Art. 3(1)(b)2.1.2.3 Harm to water resources: an intrinsic approach. Art. 2(1)(b)2.1.2.4 Harm to waters and the threshold condition. Art. 2(1)(b)2.1.2.5 Harm to land: an anthropocentric approach. Art. 2(1)(c)2.1.3 The definition given by the EU legislator in Directive 2008/992.1.4 Critical assessment of the definition of damage and harm to water, air and land: limited definition, the threshold condition and the largely anthropocentric approach2.1.4.1 Limited application to water, air and land2.1.4.2 The threshold requirement: two criticisms2.1.4.3 Directive 2004/35 and harm to land: two criticisms2.1.5 Damage and harm to living species, habitats and ecosystems: the choices made by the EU legislator2.1.5.1 Damage: the definition given by the EU legislator in Directive 2004/352.1.5.2 Harm: the definition given by the EU legislator in Directive 2004/352.1.5.3 Damage: the definition given by the EU legislator in Directive 2008/992.1.5.4 Harm: the definition given by the EU legislator in Directive 2008/992.1.6 Critical assessment of damage and harm to species, habitats and ecosystems2.1.6.1 Features not covered by the Directives: three common criticisms2.1.6.2 Directive 2004/35 and damage to protected species and habitats: two criticisms2.1.7 Definition of damage and harm to natural resource services: the choices made by the EU legislator and critical assessment2.1.7.1 Definition given by the EU legislator in Directives 2004/35 and 2008/992.1.7.2 Critical assessment: the services and ecological services not covered2.2 gaps in the directives: the grounds for responsibility. Limits of the public and regulatory approach2.2.1 Introduction: grounds for responsibility trigger the application and the regulatory approach of the Directives2.2.1.1 A mitigating factor in case of interplay or concurrence between parallel responsibility regimes2.2.1.2 The Directives: instrumental to enforce EU environmental law2.2.1.3 Effects of enforcement matters on the regulatory approach and responsibility paradigm2.2.2 Directive 2004/35: the polluter pays principle is not a ground for environmental responsibility2.2.2.1 Directive 2004/35 and the polluter pays principle, an economic principle2.2.2.2 Explaining the polluter pays principle’s overwhelming presence2.2.2.3 Rejecting the Polluter Pays Principle as grounding environmental responsibility2.2.3 Directive 2004/35: risk as the main ground and fault as a subsidiary ground for responsibility2.2.3.1 The dual approach to environmental responsibility: risk and fault2.2.3.2 Risk as grounding environmental responsibility: general theoretical aspects2.2.3.3 EU environmental law framing the application of the risk-based responsibility2.2.3.4 EU environmental law: three forms of prevention obligations2.2.4 Directive 2008/99: unlawfulness grounding environmental responsibility2.2.4.1 Grounds for environmental criminal responsibility: three models2.2.4.2 Unlawfulness as a ground for environmental responsibility: rejection of the autonomous offence2.2.4.3 Nine environmental offences2.2.4.4 Definition of unlawfulness: EU environmental law and obligations binding private persons2.2.4.5 Mens rea: intention and EU definition of “serious negligence”2.2.5 Identification of the responsible persons. Directive 2004/35: the operator’s responsibility2.2.5.1 Operation or control of the activity or legally delegated decisive economic power2.2.5.2 Requirement to establish the causal link2.2.5.3 Causal link, presumption and diffuse, widespread pollution: the ERG case.2.2.5.4 Several responsible persons: multiple party causation2.2.6 Identification of the responsible persons. Directive 2008/99: natural and legal responsible persons2.2.6.1 Corporate environmental criminals as main environmental offenders2.2.6.2 Definitions of legal persons and conditions to have them criminally responsible2.2.7 Impact and limits of the regulatory approach regarding the grounds for responsibility and identification of the responsible person2.2.7.1 Shift of paradigm: negative effect for the protection and prevention approaches2.2.7.2 Gaps in EU environmental law mirrored in EU environmental responsibility law: the “boomerang” effect2.2.7.3 The “boomerang effect”: limits of substantive EU environmental law2.2.7.4 EU environmental law underpinned by economic interests of lobby groups2.2.7.5 Structural gaps of EU environmental law. Four issues2.2.8 Specific gaps of Directive 2008/99: dependence of environmental criminal law upon administrative law and lack of details in relation to “serious negligence”2.2.8.1 Dependence of environmental criminal law upon administrative law2.2.8.2 “Serious” negligence: a useless and contested specification2.2.9 Specific gaps of Directive 2004/35: grounds for responsibility ignored and the ambiguous notion of operator2.2.9.1 Rejection of profit and guarantee as grounds for responsibility2.2.9.2 The ambiguous notion of operator2.3 International environmental law partialy conflicts with the Directives: natural resources vs. biodiversity2.3.1 Biodiversity and international environmental law: the Biodiversity Convention2.3.1.1 The Biodiversity Convention: a brief presentation2.3.1.2 Definition of biodiversity: Article 22.3.1.3 EU notion of habitats, services and natural resources: a portion of biodiversity2.3.1.4 The Biodiversity Convention does not recognise biodiversity’s intrinsic value2.3.2 Biodiversity and the European Court of human Rights2.3.2.1 The European Convention on Human Rights: limited potential regarding natural resources and biodiversity2.3.2.2 The purely instrumental value of environmental elements2.4 International environmental law and human rights comfirm the Directives through policy diffusion: damage and harm to natural resources2.4.1 Damage and harm to biodiversity and international environmental law: the Biosafety Protocols2.4.1.1 A brief presentation2.4.2.2 Objectives, definitions and scope of application2.4.2.3 Definition of damage and harm2.4.2.4 The threshold requirement2.4.2.5 Pollutions having a “diffuse character”2.4.2.6 The Biosafety Protocols: confirmation through policy diffusion2.4.2 Damage and harm to biodiversity and the European Court of Human Rights2.4.2.1 Damage and harm to environmental values: confirmation2.4.2.2 Pollutions having a “diffuse character”: (partly) conflict2.5 ConclusionCHAPTER 3. CONFLICT WITH HUMAN RIGHTS: DEFERENCE TO THE INTERNATIONAL CIVIL LIABILITY FRAMEWORKS THAT APPLIES TO OIL SPILLS IN DIRECTIVE 2004/353.1 Limited scope of application of the Directive: the exclusions of responsibility mechanisms3.1.1 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. 33.1.5 Directive 2004/35: environmental damage already covered by international Conventions. Art. 4(2) to 4(4)3.1.5.1 Maritime accidents3.1.5.2 Nuclear accidents3.1.5.3 Critical appraisal of deference to international environmental law3.2 Deference to international law conflicts with human rights : the case of the exclusion of oil-spill damage3.2.1 The right to property is mobilised to challenge the international regime that applies to oil-spills3.2.2 The international regime for the compensation of oil pollution damage: A classic example of limited responsibility3.2.2.1 General overview of the international civil liability regime3.2.2.2 First limit: the victim’s burden of proof3.2.2.3 Second limit: the timeframe for considering claims and awarding payments3.2.2.4 Third limit: definition of damage. Article 1(6) of the Civil Liability Convention3.2.2.5 Fourth limit: the awarding of compensation. Article 4(5) of the Fund Convention3.2.2.6 Fifth limit: responsibility channelled to the owner of the ship. Article 3(4) of the Civil Liability Convention3.2.2.7 Sixth limit: exceptions to override the owner’s limited compensation and channelled liability3.2.3 Right to Property under the European Convention of Human Rights3.2.4 The international liability regime is not compatible with the right to property: a conflict case3.2.4.1 Two cases on limited responsibility and oil-spills: the Pressos and Mangouras cases3.2.4.2 The application of Article 1 of the first protocol: legal definition of possession and horizontal effect3.2.4.3 From being party to an international convention to the recognition of interference on behalf of a State3.2.4.4 The “lawfulness test”: presumption of conformity3.2.4.5 The “general interest test”: presumption of conformity3.2.4.6 General functioning of the “proportionality test”: rule, principles, and application criteria3.2.4.7 Considering the harm suffered and the possibility to obtain compensation in an oil pollution claim3.2.5 (No)Compatibility of the international regime with right to property: consequences for Directive 2004/353.2.5.1 The (no) compatibility finding extended to the other Conventions deferred to3.2.5.2 The (no)compatibility finding: matters of legality and legal coherence3.3 ConclusionCHAPTER 4. HUMAN RIGHTS AND PROCEDURAL LIMITATIONS IN THE DIRECTIVES: COMPLEMENT AND CONFLICT4.1 Gaps in the Directives that have a procedural dimension4.1.1 Identifying the victim of the wrong: critical assessment of the public nature of the Directives4.1.1.1 Introduction. The victim of an environmental wrong: who can be the holder of environmental rights4.1.1.2 Choice of the EU legislator: environmental rights holders without a direct cause of action4.1.1.3 Criticising the choice of the EU legislator: the trustee as a screen4.1.2 The development risk defence. Directive 2004/35, Art. 8(4)(b)4.1.2.1 Introduction to development risks: either grounding responsibility or grounding exceptions to the responsibility principle4.1.2.2 Two components of the legal definition of development risk: risk inherence and indiscernibleness4.1.2.3 Legal treatment: a regulatory choice. The clause as a defence or grounding responsibility4.1.2.4 Choice of the EU legislator: development risks ground an exception to the responsibility principle4.1.2.5 Legal definitions: inherence and indiscernibleness in Directive 2004/354.1.2.6 Legal definitions: the defence before the European Court of Justice4.1.2.7 Knowledge quality requirement: the most advanced level of scientific and technical knowledge: the European Commission v. UK case4.1.2.8 Additional obligations binding the operator to successfully invoke the defence: not possible with Directive 85/374: the European Commission v. France case4.1.2.9 Additional obligations binding the operator to successfully invoke the defence: possible with Directive 2004/354.1.3 The permit defence. Directive 2004/35, Art. 8(4)(a)4.1.3.1 The EU legislator endorses and justifies the permit defence4.1.3.2 The permit defence rationae materiae: scope of application and legal treatment4.1.4 Critical assessment of the permit and development risk defences4.1.4.1 The permit and development risk defences were highly contested during the legislative process: outcome of the trade-offs4.1.4.2 Three common criticisms to the development risk defence and permit defence: deficits in harmonisation, coherence and consistency4.1.4.3 The development risk clause as a defence: questioning the regulatory choice4.1.4.4 Application and interpretation of development risks: concerns that relate back to the temporal dimension and precautionary principle4.1.5 Rationae temporis matters that limit the possibility to set environmental responsibility into motion4.1.5.1 Two temporal limitations: non-retroactivity and prescription4.1.5.2 The specific temporal limitation clarified in the ERG case4.2. Impartiality and independence requirements and the discretion of public authorities : a complement case4.2.1 An illustration: the F