Polluter pays principle

In environmental law, the polluter pays principle is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. This principle has also been used to put the costs of pollution prevention on the polluter. [1] It is regarded as a regional custom because of the strong support it has received in most Organisation for Economic Co-operation and Development (OECD) and European Union countries,[2] and has a strong scientific basis in economics. It is a fundamental principle in US environmental law.[3]

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Historical basis

According to the French historian of the environment Jean-Baptiste Fressoz, financial compensation (not named "polluter pays principle" at that time) is already the regulation principle of pollution favoured by industrials in the nineteenth century.[4] He wrote that: "This principle, which is now offered as a new solution, actually accompanied the process of industrialisation, and was intended by the manufacturers themselves."[4]

In modern times, the continued adherence to the polluter pays principle is supported scientifically by economics. One condition that must be satisfied in order to maximise Pareto efficiency is the assignment of all costs of a decision, such as the harm resulting from a decision to pollute, to the agent making the decision, effectively removing all externalities.[5][6]

Applications in environmental law
An ecotax allows governments to better manage the pollution caused directly or indirectly by industry.

The polluter pays principle underpins environmental policy such as an ecotax, which, if enacted by government, deters and essentially reduces greenhouse gas emissions. This principle is based on the fact that as much as pollution is unavoidable, the person or industry that is responsible for the pollution must pay some money for the rehabilitation of the polluted environment.[1]

Australia

The state of New South Wales in Australia has included the polluter pay principle with the other principles of ecologically sustainable development in the objectives of the Environment Protection Authority.[7]

Canada

The Canadian Energy Regulator mandates that oil companies must pay for any environmental impacts from a spill. This mandate requires oil companies to pay for damages, regardless of whether or not the spill is their fault.[8]

European Union

The polluter pays principle is set out in the Treaty on the Functioning of the European Union[9] and Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is based on this principle. The directive entered into force on 30 April 2004; member states were allowed three years to transpose the directive into their domestic law and by July 2010 all member states had completed this.[2]

France

In France, the Charter for the Environment contains a formulation of the polluter pays principle (article 4):

Everyone shall be required, in the conditions provided for by law, to contribute to the making good of any damage he or she may have caused to the environment.[10]

Ghana

In Ghana, the polluter pays principle was adopted in 2011.[11]

Sweden

The polluter pays principle is also known as extended producer responsibility (EPR). This is a concept that was probably first described by Thomas Lindhqvist for the Swedish government in 1990.[12] EPR seeks to shift the responsibility of dealing with waste from governments (and thus, taxpayers and society at large) to the entities producing it. In effect, it internalised the cost of waste disposal into the cost of the product, theoretically meaning that the producers will improve the waste profile of their products, thus decreasing waste and increasing possibilities for reuse and recycling.

The Organisation for Economic Co-operation and Development defines extended producer responsibility as:

a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical or socio-economic responsibility for environmental impacts that cannot be eliminated by design.[13]

United Kingdom

Part IIA of the Environmental Protection Act 1990 established the operation of the polluter pays principle. This was further built upon by The Environmental Damage (Prevention and Remediation) Regulations 2009 (for England) and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 (for Wales).[14]

United States

The principle is employed in all of the major US pollution control laws: Clean Air Act,[15][16] Clean Water Act,[17] Resource Conservation and Recovery Act (solid waste and hazardous waste management),[3] and Superfund (cleanup of abandoned waste sites).[3]

Some eco-taxes underpinned by the polluter pays principle include:

Limitations of polluter pays principle

The US Environmental Protection Agency (EPA) has observed that the polluter pays principle has typically not been fully implemented in US laws and programs. For example, drinking water and sewage treatment services are subsidized and there are limited mechanisms in place to fully assess polluters for treatment costs.[19]

Zimbabwe

The Zimbabwe Environmental Management Act of 2002 [20] prohibits the discharge of pollutants into the environment. In line with the "Polluter Pays" principle, the Act requires a polluter to meet the cost of decontaminating the polluted environment.[21]

In international environmental law

In international environmental law it is mentioned in the principle 16 of the Rio Declaration on Environment and Development of 1992 [22]

Exception for excusable ignorance

The polluter pays principle (PPP) has been doubted in cases where no one recognized that a type of pollution posed any danger until after the pollution began. An example occurs in the history of climate change science which shows that considerable carbon dioxide was emitted into the atmosphere by industrialized countries before there was scientific awareness or consensus that it could be dangerous.[23]

See also

References
  1. OECD (2008). The Polluter Pays Principle: Definition, Analysis, Implementation. Paris: Organisation for Economic Co-operation and Development. doi:10.1787/9789264044845-en. ISBN 9789264113374.
  2. European Commission, Environmental Liability, accessed 29 October 2017
  3. "Waste, Chemical, and Cleanup Enforcement". EPA. 2016-01-07.
  4. (in French) Nic Ulmi, "Aux origines de la crise écologique" [The origins of the ecological crisis], Le temps, 18 October 2016 (page visited on 22 October 2016).
  5. Ambec, Stefan; Ehlers, Lars (2014-12-24). "Regulation via the Polluter‐pays Principle" (PDF). The Economic Journal. Oxford University Press. 126 (523): 884–906. doi:10.1111/ecoj.12184. S2CID 13875804.
  6. Callan, S.J & Thomas, J.M. (2007). 'Modelling the Market Process: A Review of the Basics', Chapter 2 in Environmental Economics and Management: Theory, Politics and Applications, 4th ed., Thompson Southwestern, Mason, OH, USA
  7. Protection of the Environment Administration Act 1991, section 6(2)(d)(i).
  8. Government of Canada, Canada Energy Regulator (2023-03-14). "CER – Emergency Management and the Polluter Pay Principle". www.cer-rec.gc.ca. Retrieved 2023-03-21.
  9. Article 191(2) TFEU
  10. Charter for the Environment, Constitutional Council (page visited on 28 August 2016).
  11. Ghana Business News, Cabinet approves Polluter Pays Principle, 8 December 2011, accessed 29 October 2017
  12. The International Institute for Industrial Environmental Economics at Lund University, Sweden (2000)."Extended Producer Responsibility in Cleaner Production" Archived 2014-05-13 at the Wayback Machine Doctoral Dissertation (2000)
  13. Organisation for Economic Cooperation and Development (OECD). Environment Directorate, Paris, France (2006)."Extended Producer Responsibility." Project Fact Sheet.
  14. The Environmental Damage Regulations: Preventing and Remedying Environmental Damage, accessed 29 October 2017
  15. Billings, Leon G. (2005-03-09). "Cleaning America's Air: Progress and Challenges". Bethany Beach, DE: Edmund S. Muskie Foundation. Speech at the University of Tennessee, Knoxville.
  16. "Air Enforcement". Washington, D.C.: US Environmental Protection Agency (EPA). 2015-12-01.
  17. "Water Enforcement". EPA. 2015-12-14.
  18. The Buck Stops Here: Polluters are Paying for Most Hazardous Waste Cleanups. Superfund Today (Newsletter) (Report). EPA. June 1996. EPA-540-K-96/004.
  19. Water and Wastewater Pricing: An Informational Overview (PDF) (Report). EPA. 2003. EPA-832-F-03-027.
  20. Chapter 20:27
  21. The Herald (Harare), Polluter pays as environmental management principle, 18 May 2016, accessed 6 November 2017
  22. Nations, United. "United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992". United Nations. Retrieved 2023-04-02.
  23. García-Portela, Laura. “Moral Responsibility for Climate Change Loss and Damage: A Response to the Excusable Ignorance Objection”, International Journal of Philosophy 1 (39):7-24 (2020).

Further reading
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