Historical Pollution

Historical pollution is a problem of global significance which has tragically emerged—in different times and forms—in a number of industrial contexts. From a criminological point of view, this phenomenon, despite its variable geometry, is characterized by recurrent features. In brief, it is—wholly or partially—the result of industrial outflows of polluting substances which took place in the past or were protracted over time, usually in line with the practice followed at the time of the facts. The nature of this environmental damage makes this phenomenon different from that of one single catastrophic polluting event with historical effects. This latter aspect triggers the need for specific legal answers. In this regard, comparative analysis highlights that in several countries the main responses to historical pollution are based on a variety of compensatory and reparatory measures belonging to civil or administrative law. To the contrary, criminal law plays a rather residual and supplementary role, normally limited to situations in which the contamination is recent or still ongoing. By way of exception, only in Italy is it possible to identify a long list of judgments issued by criminal courts in cases of historical pollution, and many of these have encountered difficulties in assessing criminal liability have been critically analyzed by scholar.

The aim of this contribution is to map out, from a green criminology perspective, some contextual and theoretical scenarios that help to interpret and properly situate the phenomenon of “historical pollution” within wider cultural and scholarly frameworks. I will do this by briefly considering three different scenarios: Love Canal (USA), Brescia (Italy), and Huelva (Spain). In describing these individual contexts, it will be possible to highlight certain common features of the phenomenon of historical pollution, and, at the same time, to see its global relevance. The main question addressed is through what processes the “gift” of industry becomes “poison” by contaminating the local environment, thereby assuming the ambiguous form of a “deadly gift” and turning into something disastrous on the social as well as the environmental level. This criminological contribution may then be useful in increasing knowledge and promoting a theoretical reflexivity about the historical inheritance of industrialization processes.

The chapter introduces and investigates the concept of “historical pollution” in the context of environmental law. The subject is complex, as the principal consideration in our analysis concerns the role of time in the causation of harmful consequences (both for the environment and human health), notably in view of the prolonged timeframe that separates the conduct (pollution) and the effect (contamination). The phenomenon under scrutiny has significant implications for both the legal and the social fields. Indeed, legal enforcement of putative crimes against the environment is generally ineffective precisely because of this temporal factor, and this also has consequences for social perceptions and the dynamics of victimization. Yet these considerations could also contribute to a definition of historical pollution, as—given the complexity and uncertainties that surround the phenomenon—they suggest ways in which material cases could be used to frame a general understanding of the concept. Attention here is focused on pollution related to industrial activities since such cases are prominent in the field. The proposed definition strives to establish a general framework within which domestic analyses can be located, consistent with the particularities of each legal system. It represents one of the first steps into the unexplored terrain of historical pollution.

The chapter is dedicated to the Italian system and focuses on the criminal enforcement of historical pollution, which is presented within the legal regime and critically discussed. Due to the lack of “tailor-made” regulation and of pertinent crimes, in order to tackle cases of historical pollution, case law has often recurred to extensive interpretation mainly of felonies conceived to protect public safety. However, such a choice in the criminal law field represents the infringement of fundamental principles and the debasement of legal rules. In this respect, issues concerning causation, mens rea, the extension of the range of responsible parties, and the statute of limitation are discussed. Several snapshots are finally presented on the 2015 legal regime which has introduced several felonies explicitly dedicated to environmental protection. The author opines that, in the absence of consistent case law, it is doubtful whether the new legal tools—although innovative—can guarantee greater effectiveness in respect of criminal enforcement, since the legal provisions do not fit the basic traits of historical pollution.

In the absence, at least until recently, of a comprehensive system for environmental protection in Italy, the case law has mainly reverted to the offenses against public safety foreseen by the Italian Criminal Code, in order to meet the protection needs arising in the context of cases of historical pollution. In particular, the offenses of Unnominated disaster and of Water poisoning , provided for, respectively, by Articles 434 and 439 of the Italian Criminal Code, appear to be the most recurring. With regard to the Testo Unico Ambiente (Legislative Decree of 3 April 2006, n. 152) the most significant issues arising within the case law and concerning historical pollution relate to the misdemeanor under Article 257 (Failure in remediation proceedings). In the following sections, cases identified either as leading cases or as in any event particularly representative of the phenomenon will be briefly set out. The analysis conducted on the case law brings to light a considerable number of questions pertaining to various topics in criminal law: from the culpability principle to succession in duty of care and the selection criteria for punishable conduct. The description of leading cases is followed by a short analysis of five hypothetical scenarios, related in various ways to the phenomenon of historical contamination and characterized by an increasing level of harmfulness. To each scenario we try to give possible solutions, based on the case law examined and the statutory framework. As every situation typified within each scenario reflects a mere abstract hypothesis, whose evaluation under Italian criminal law could change according to the concrete facts that may actually occur, the principles listed in Sects. 2.1–2.5 have to be considered as general guidelines and not as specific directions.

This contribution analyses the provisions in the Italian legal system concerning corporate liability for administrative infringements depending on crimes, provided for by Legislative Decree 231/2001, from the perspective of the phenomenon of historical pollution. The work deals with the problem of verifying whether and to what extent past pollution—caused before the entry into force of Legislative Decree 231/2001—with persistent and current effects, may result in corporate liability which is substantially criminal, as is the one outlined in the Decree. By trying to highlight the main issues raised by historical pollution in this matter, and the critical aspects related to the regulation provided for by the above-mentioned Decree, the analysis is carried out at three levels: (i) the introduction in 2011 of environmental crimes in the Decree through Article 25-undecies, and the problems that have accompanied this belated intervention; (ii) the interference between the general principles of criminal law and the theme of historical pollution, with reference to the principles of legality and non-retroactivity and to the offences in environmental matters which may be relevant in relation to cases of historical pollution—with due regard to the moment of the commission of the crime (tempus commissi delicti); (iii) the issues raised by some provisions of the Decree with respect to the object of the present research (sites remediation, sanctions and confiscation of profit, statute of limitation). The aim is to deepen the topic, unexplored in many aspects, by defining the scope of application of Legislative Decree 231/2001 with respect to historical pollution, also taking into account the reform of 2015 that renewed Italian environmental criminal law.

The text aims to illustrate the theme of administrative tools and compensatory damage through which the Italian legal system deals with historical pollution, whether strictly environmental or with respect to the capital and non-pecuniary harms caused to third parties. In this sense, after a first overview of the heterogeneity of the means by which the administration can carry out policies of environmental governance, this work examines the conditions and procedures for imposing on the responsible persons for historical contamination remediation, safety operations, and, in some cases, compensation for the damage caused to the environment as a common good. This examination is conducted with particular attention to the problems related to the time factor and the difficulty in balancing the principles of legality and legal certainty with the necessary execution of the “polluter-pays” principle. The text, finally, examines the remedies granted to third parties harmed by historical pollution, and the hypothesis of civil and accounting responsibility which an administration and its officials may incur in case of incorrect management of environmental governance functions.

“Historical pollution” in the United States may mean many things. For the purposes of the definition used in our project, the United States has a fairly evolved framework for addressing the phenomena. As a common law country, traditional and newly interpreted tort law may be applicable. So too, traditional criminal law can be and has been utilized. Before modern historical pollution legislation was enacted, legal means existed to punish historical pollution and to remediate and remove orphan dumps, related pollution and its effects—and to compensate victims. Most important now is federal (and some state) law passed specifically to address the massive historical pollution discovered several decades ago. Central is the Superfund law, which provides for rules of liability, punishment, removal, remediation, and compensation. It has had considerable success, after inefficient and expensive beginnings. Thus, U.S. laws of several kinds are relevant to the types of scenarios noted in this report. Complicating the analysis further is the need for several factual assumptions to make the scenarios realistic under U.S. law and the various interpretations of the arsenal of relevant law.

The “contaminated land regime” is the main regulatory tool from the 1990s that has been given to enforcing authorities in the UK in order to deal with phenomenon of historical pollution. Recent figures, though, demonstrate that the majority of the contaminated sites are remediated through voluntary clean-up and via the planning system. In addition, historical pollution can be also tackled through private law remedies (such as negligence and private or public nuisance) triggered by individuals claiming damages for the injuries suffered as a consequence of the contamination. In this context, criminal law plays a very limited role. Only failing to comply with a remediation notice issued by the relevant authority under the contaminated land regime constitutes a criminal offence. However, there are no legal obstacles that prevent, at least in theory, the possibility of also applying the environmental criminal law framework to cases of historical pollution.

In this paper, we present a general approach to the problem of historical pollution in Spain. First, we analyse some of the most significant historical pollution cases in the recent industrial and economic history of Spain, well known because of their deep social impact and environmental consequences. Second, we explore Spanish domestic law to study what kind of instruments are available—including criminal, administrative, and civil measures—to punish these polluting activities, repair the affected areas and compensate for damage to human health. This paper shows that Spanish legislation and doctrine have undergone significant development in the wide field of environmental criminal law in the last twenty-five years, although Spain has had few significant historical pollution cases during this period.

The challenges of historical pollution and clean-up, generally known under the term Altlasten, have been systematically addressed in Germany since the 1980s. German administrative law has always contained one of the furthest-reaching regulations of liability imaginable, providing the owner as a possible, non-subsidiarily liable addressee for clean-up orders in the interest of effectiveness. Although environmental criminal law has a strong tradition in Germany, its role with regard to historical pollution is very limited. The consequences of contaminated sites for the health of neighbours largely go beyond the possibilities of private law, but are mitigated by Germany’s system of social security. The typical characteristics of pollution—previously unknown effects, cumulation—have motivated new risk-based solutions both in private and administrative law to shift the responsibility back onto the polluter. Criminal law has reacted by establishing offences that punish abstract dangers instead of damages.

Although never addressed per se, historical pollution is tackled in the French legal system by the national “Contaminated Land Regime”. Environmental law is the masterpiece of this system: industrial facilities are operated under the control of the administrative authority that may at any moment impose and enforce clean-up procedures for soil, water, and waste pollution. Under the regulatory regime, the last operator of a contaminated site is generally liable for the remediation of historical pollution. Liability under the regulatory regime shapes liability under Private and Criminal law. On the one hand, the last operator of an industrial site may be liable for losses and damages caused to third parties by historical contamination: in this case, the last operator may not oppose any defence to third parties, but is entitled to bring a civil claim against the previous operator who did not disclose the historical pollution of the site. On the other hand, the last operator who fails to comply with legislative or administrative prescriptions may be also liable under criminal law. Moreover, when historical pollution causes risks for or damage to the environment or human health, misdemeanours may also apply alongside environmental offences and offences against persons. In the French legal system, the assignment of liability for historical pollution is thus as effective as the risk of vicarious liability is high.

This chapter analyses the relationship between historical pollution and human rights violations in the light of the case law developed by international and regional human rights courts and other bodies. According to this case law, States are required to adopt preventive measures intended to handle certain cases of pollution that pose significant risks for human rights. Some regional courts oblige national authorities to protect the right to life in the context of dangerous activities through effective criminal investigations aimed at punishing—in the victims’ interests—the individuals or corporations responsible for deaths or physical illnesses resulting from technological and environmental disasters. In this framework, two situations need to be distinguished. As far as “historical pollution” is concerned, criminal proceedings for deaths and injuries caused by past activities are often considered inadequate to meet the real needs of the victims and to respect the fundamental rights in criminal matters. Conversely, when human rights have been violated as an effect of “ongoing pollution” caused by industrial activities in the absence of appropriate public measures, criminal law is often required. Further developments in the case law of the human rights courts and bodies are expected: they will tell us whether, and if so to what extent, criminal law may play a role in strengthening human rights and environmental protection with reference to different cases of historical pollution.

Historical pollution is a widespread problem: it is not only an old and unresolved question for many developed countries, but is, or will soon become, a new and complex issue for a number of developing countries. The management and remediation of land and groundwater contaminated by toxic substances released into the environment by past polluting activities thus represents one of the main challenges to which states are, or will be, called upon to give a response in order to protect the environment and human health. Despite this, there is currently no comprehensive strategy at international or EU level for protecting soil and remedying historic environmental damage. In effect, with regard to the remediation of environmental damage, the main binding instrument adopted at supranational level is the European Liability Directive, which cannot, however, be applied retroactively to historic damage; and all attempts to introduce a general instrument on soil protection at international or EU level have been unsuccessful. Furthermore, in accordance with the principle of non-retroactivity, EU Directive 2008/99/EC cannot be applied to past polluting activities carried out before its entry into force. The reluctance of many states to adopt a global strategy for addressing historical pollution has political, economic, legal, and cultural causes. Yet legacy pollution is a common problem for humanity: at stake are the rights of future generations exposed to such pollution. In this regard, the OECD’s recommendations as elaborated in Liability for Environmental Damage in Eastern Europe, Caucasus and Central Asia (EECCA): Implementation of Good International Practices, and the Sourcebook of Pollution Management Policy Tools for Growth and Competitiveness drafted by the World Bank Group, offer significant examples of approaches aimed at addressing historical pollution from a legal, technical, and economic perspective. These instruments could form a basis for developing international guidelines on dealing with this category of pollution.