Laws of environmental liability, harm and criminal actions

Environmental liability is an instrument of environmental protection for the prevention of and compensation for environmental harm. It promotes the personal responsibility of the (economic) players. Properly constituted environmental liability law creates economic incentives to prevent the occurrence of harm, paving the way for the payment by the polluter of compensation for any harm that occurs.

The legislature can create environmental liability legislation under both public and civil law. In terms of civil law this is a matter of compensation for harm to life, limb, health or property of individuals who fall victim to such harm mediated by environmental media as a result of the conduct of other individuals. This kind of harm is covered in particular by the Environmental Liability Act (Umwelthaftungsgesetz) of 19.12.1990. This is accompanied by standards that oblige the polluter to repair the harm to environmental goods by itself, even if the latter are not the property of a person. These standards allow the authorities to proceed against the polluter, if necessary with coercion, and to order it to repair any harm. Such regulations are contained in the Environmental Damage Act (Umweltschadensgesetz), which entered into force on 14.11.2007.

The development of environmental liability law at EU level and a compact presentation of the conditions and legal consequences of the practical application of the Environmental Damage Act can be found in the presentation “Umweltschutz durch Umwelthaftung – Das Umweltschadensgesetz” (“Environmental protection through environmental liability - the Environmental Damage Act”).

The German Environment Agency has for many years been engaged in the further development of environmental liability at national, European and international levels.

International environmental liability law is becoming increasingly important in the discussion on better international implementation and compliance with environmental standards. An example of this is the discussion on national and European supply chain regulation. International environmental liability law can provide compensation for transboundary or extraterritorial damage incurred by the polluter and thus contribute to damage-avoiding behavior.

However, a comprehensive reconstruction of the complex subject matter of international environmental liability law has yet to be undertaken. A large number of questions, including fundamental ones, remain open. For example, what is the relationship between state and private responsibility for the environment? Can liability law incentives be effectively developed in the complex contexts of the global economy? How can national and international levels of regulation complement each other in a meaningful way? These are the research questions addressed by the research project “International Liability of Companies for Environmental Damage” (Flyer), which was commissioned by UBA.

The research project also examines, from the perspective of international law, the possibilities and limits of “extraterritorial regulation”, i.e. regulation aimed at protecting goods that are (also) located outside one's own state territory. Of particular interest here is national regulation of corporate due diligence along global supply chains. The discussion paper “Legal Issues in the Context of Supply Chain Regulation”/ „Rechtsfragen im Kontext einer Lieferkettenregulierung“, written by Dr. Peter Gailhofer in the context of the research project and published separately, addresses numerous concerns, and develops a differentiated understanding of environmental due diligence

UBA‘s current work on international environmental liability is based on earlier studies. The study prepared on behalf of UBA entitled “Environmental Liability in International Law: Towards a Coherent Conception” and authored by Prof. Rüdiger Wolfrum, Prof. Christine Langenfeld and Dr. Petra Minnerop extensively describes and evaluates many such cases giving rise to liability which are found mainly in multilateral environmental agreements but also in international case law. The authors analyse national environmental liability regimes in Germany and the United States, and show how international civil and procedural law can best protect the environment. It is the contention of the authors that the relatively most stringent domestic environmental liability law should always be applied. One chapter is devoted to comparing and contrasting the essential elements of the various international, European and national liability systems. According to the authors, there is an ever increasing interdependence between the international and European levels of standard-setting and the improvement of compliance with environmental law in international environmental law. The authors therefore attempt to use the subsidiary and complementary state responsibility in the event of the non-implementation, for instance, of EU directives, which is enshrined in European law, as a basis for new international liability regimes. They contend that an international liability regime needs to be developed not just in the sphere of civil law but also for states. The study was published in English by the Erich Schmidt Verlag as volume 2/05 of the UBA BERICHTE (reports) series.

The study builds on the existing work entitled “Environmental Protection by Means of International Liability Law” by Prof. Rüdiger Wolfrum and Prof. Christine Langenfeld, which was also published in English by the Erich Schmidt Verlag as volume 6/99 of the UBA BERICHTE (reports) series.

Liability for harm to the environment as a common good - for instance to biodiversity, water and soil - can strengthen the hand of preventive environmental protection and ensure the enforcement of compensation for environmental harm in accordance with the polluter-pays principle. Prof. Juliane Kokott from the University of St. Gallen has joined forces with an interdisciplinary research team to develop cornerstones for liability for environmental harm. Particular attention was paid to the legal requirements and methods for determining the nature and scope of compensation of harm. The authors analyse existing national and international liability regimes as well as the EC regulations which were still being discussed at that time and make specific proposals for the further development of liability for ecological harm. The study “Ökologische Schäden und ihre Bewertung in internationalen, europäischen und nationalen Haftungssystemen – eine juristische und ökonomische Analyse” (“Ecological harm and its evaluation under international, European and national liability regimes - a legal and economic analysis”) was published by Erich Schmidt Verlag, Berlin as volume 3/03 of the UBA BERICHTE (reports) series.

Criminal law is the sharpest sword of any legal system. The legislature uses a penal provision to express a particular value judgement. In Germany penal provisions are found mainly in paragraphs 324 et seq. of the Criminal Code (Strafgesetzbuch) but also in many specialist laws (see annex in the “Veröffentlichung Umweltdelikte 2004 – Eine Auswertung der Statistiken” (Publication of environmental offences 2004 - an evaluation of the statistics).

Every year since 1978 the German Environment Agency has described the status and development of environmental offences on the basis of police and court statistics. The UBA publications also record information on the crime scenes and perpetrators (especially age, gender and nationality) in addition to the number of cases from investigation through to conviction for environmental offences. The publication also presents information on the way in which offences are reported and the dark field in environmental crime.

An evaluation of police crime statistics, the statistics of the police authorities of the individual Länder and the law enforcement statistics of the German courts in the “Umweltdelikte 2004” (“Environmental offences 2004”) study of the German Environmental Agency revealed - as in 2003 - a declining trend in environmental crime. In the form of detailed graphical representations and explanatory notes on the latest crime statistics, the volume offers a comprehensive treatment of the status of and trend in environmental crimes committed in Germany. In the form of clear summaries it systematises crime in the environmental sector in categories including the individual Länder, offence types, cases which have come to light and been resolved alongside offender categories and criminal prosecution.

The “Umweltdelikte 2004” study was published in the TEXTE series of the German Environment Agency.

In cases of environmental harm which do not at the same time represent damage to human health or property, special significance is afforded to compensation by the state and under public law. For this reason, the German Environmental Agency commissioned a research project entitled “Harmonisierung des öffentlich-rechtlichen Schadensausgleichs bei Umweltschäden” (“Harmonisation under public law of compensation for environmental damage”) before the entry into force of the Environmental Damage Act and its European regulations. The authors were Prof. Juliane Kokott from the University of St. Gallen, Switzerland, and Dr. Frank Hoffmeister.

The study is a contribution to the creation of a uniform law on liability for environmental harm. It also addressed the specific question of national liability regimes in the event of environmental harm in extraterritorial areas. In the first part it elaborates on the existing liability regulations for environmental harm under public law in Germany and analyses and evaluates them. In the process the study makes it clear that there is a variety of federal and national compensation regulations which are, however, quite different in terms of their construction and scope. Moreover, significant gaps exist in some environmental sectors. From the perspective of the authors, this results in some cases in conflicting assessments.

There then follows a comparison of 14 foreign legal systems and their liability regimes for environmental harm. From this the authors derives suggestions for possible national regulations. The study shows that some of the states on which the research was focused (Belgium, Denmark, Finland, Netherlands and Austria) have now developed a body of liability law which includes all environmental media, and other states (Portugal, Sweden and Switzerland) are on the way to doing so. In addition, environmental groups have been granted a supplementary right of action in many states.

The study covers various efforts to harmonise environmental liability at the European level which had not at the time of the publication of the study resulted in legally binding targets for Germany.

In respect of liability for environmental harm in extraterritorial areas - in particular on the high seas and in Antarctica - the report sets out the legal framework under international law, existing German legislation and various other national regulatory possibilities.

The study entitled “Öffentlich-rechtlicher Ausgleich für Umweltschäden in Deutschland und in hoheitsfreien Räumen” (“Compensation under public law for environmental damage in Germany and extraterritorial areas”) was published by Erich Schmidt Verlag as volume 9/02 of the BERICHTE (reports) series of the German Environment Agency.