3. Historical Pollution: In Search of a Legal Definition

Criminological studies are here presented inasmuch as they provide elements that are useful in justifying, supporting, and discussing definitions of “historical pollution.” For a more integrated analysis of the criminological contexts pertinent to our topic, which is also complementary to the present essay, see Chap. 2 in this volume.

As is well known, the definition of “green crime” also postulates the philosophical framework which is used to understand the nexus between humans and their environment: in this respect we may distinguish anthropocentric, biocentric, and ecocentric perspectives (Halsey and White 2009). Moreover, a legalistic and a socio-legal approach may be differentiated to address this concept (Gibbs et al. 2010, pp. 125 ff.). Hence, each definition has both a philosophical and a conceptual aspect, depending on the particular view that is adopted. Different approaches—like ecofeminism, environmental racism, and the red-green movement—can be distinguished within the overall environmental justice movement (Lynch and Stretesky 2009, pp. 89 ff.).

The point is widely confirmed by the analyses presented in the chapters of this volume dedicated to domestic legal systems.

Of course the theme of complex adaptive systems is enormous and cannot properly be addressed in this context. Here attention will be paid only to those profiles that contribute to highlighting the constitutive features of the phenomenon under investigation. For a more extensive investigation of such studies, see the seminal works by Holland (1995) and Levin (1999).

Such an approach expresses a specific view about the “complexity” of living systems. Although in a different manner, the theme of complexity is discussed as a particular feature of historical pollution in this volume by L. Natali in Chap. 2.

The distinction between the two streams of argument (the polluting act, and the environmental harm understood as a consequence for natural resources) derives from Nagle’s definitional categories (2009, pp. 29 ff.) which are as follows: (i) the comprehensive definition, according to which everything that is added to the environment pollutes; (ii) the definition which aims at pinpointing lists of polluters and pollutants; (iii) the definition which centres on the polluting effects. In other words, the aim here is to coordinate the relevant considerations around two basic analytical factors of the polluting dynamic: the act and its consequences.

Taking as an example the definition presented in the chapter on the legal system of the UK (England and Wales), this pertains primarily to the “contaminated land regime” and lays emphasis on the effects of the conduct rather than on the polluting activity (regarding which, location in time has no particular relevance): see Chap. 9, Sect. 3 in this volume.

The author argues that, because of the dependence on social values, “harm” means different things for different people, consistent with their differing perspectives (Lin 2006, p. 900).

Although the author specifies that [n]one of pollution’s synonyms […] captures the same kind of concern about harms occurring in a shared environment.

Critically discussing the connections between the legal regime for insolvency and the environmental one, Mamutse and Fogleman (2013) use the term “historic pollution” to address a phenomenon analogous to what here is called “historical pollution.” Although from varying angles, “historic pollution” recurs in several other legal studies (Taylor 1999; O’Quinn 2000).

As will be discussed in more depth in the next subsection, exactly the same term—“historical pollution” —was used by Mieck; and even if the perspective is significantly different, it may well be useful to our inquiry. Mieck uses the term to refer to the different models of “pollution” which have been historically prevalent over different epochs (Mieck 1990).

Vegter and Kasamas refer to historical pollution as “contamination due to past polluting activities, which is still present in soil and groundwater.”

While the terms “pollution” and “contamination” are frequently used interchangeably, Larson (2013, pp. 1012, 1014) refers particularly to “historic contamination.”

Similarly, the terms “pollutant” and “contaminant” are also deemed synonymous.

What has here been inferred on the basis of Nagle’s statements, also seems validated by his own etymological approach, according to which he recalls that “pollution” comes from the Latin verb “polluere,” which means “to soil” or “to defile”; furthermore, according to Webster’s first American dictionary of the English Language, the first meaning—of five overall—attributed to “pollution” is “the act of polluting” (Nagle 2009, p. 7).

Consistent with this distinction, see also the definition provided on the FAO webpage (http://​www.​fao.​org/​docrep/​x5624e/​x5624e04.​htm#1.​1) concerning marine pollution. The terminological difference between “pollution” and “contamination” is explicated by quoting the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), which defines pollution as “the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of amenities.” Meanwhile, “contamination on the other hand is the presence of elevated concentrations of substances in the environment above the natural background level for the area and for the organism.”

As examples of different uses of the same terminology, consider the Italian administrative regime, according to which cases of pollution recur when the contamination has exceeded not only the “threshold concentrations of contamination” (CSC) but also the “threshold concentrations risk” (CSR). It can be inferred that “pollution” and “contamination” are qualitatively different concepts: pollution refers to more severe contamination that poses a real risk for natural resources, while contamination in itself produces only a potential risk. See in this volume one of the chapters dedicated to the Italian national context: that authored by C. Miccichè, Chap.7.

Furthermore, such an approach also appears to be consistent with the “timescape” perspective, presented by Natali (2013, pp. 76 ff.).

Of course the argument applies in general terms, although each domestic context can present particularities. For instance, the analysis of the French legal system shows how cases of historical pollution also concern further fields, such as agriculture and the military: see Chap. 12, Sect. 2 in this volume.

The point is not intended to deny the findings of studies on so-called second generation environmental harms. In brief, environmental degradation might arise as the cumulative effect of even very common activities; many sources might contribute to such pollution, although not particularly significant in themselves nor clearly pinpointed; and finally, such behaviours might be viewed as either legal or illegal. These considerations will be presented in more depth in the next subsection.

This aspect remains uncontested also for developing countries, although the different overall economic context plays a significant role in differentiating them. As Brandon notices, “[t]he predominant sources of contamination in developing countries are also industrial activities, particularly in the form of untreated industrial or chemical waste disposal. Groundwater contamination is particularly widespread in developing countries” (Brandon 2013, p. 13).

Consider for instance the Seveso Case, presented in this volume in two of the chapters focussing on the Italian context (see Chap. 4, Sect. 2; see also Chap. 5, Sect. 1.1). Different types of harmful consequences may be observed in distinguishing short-term and long-term effects of exposure to dioxins: besides the environmental harms caused, the long-term health implications (in terms of increasing rates of diseases, pathologies, and even of mortality for the community directly exposed) emerge as more significant effects than in the short term (Bertazzi et al. 1998; Pesatori et al. 2003).

For a more detailed analysis of the international legal approach addressing this issue, see Chap. 14, Sect. 6 in this volume. For our purpose, it is useful to recall the CABERNET (Concerted Action on Brownfields and Economic Regeneration) definition of “brownfield,” as recalled by Oliver et al. (2005): “Brownfield: sites that have been affected by the former uses of the site and surrounding land; are derelict and underused; may have real or perceived contamination problems; are mainly in developed urban areas; and require intervention to bring them back to beneficial use.”

As Nagle (2009, pp. 32 f.) remarks with respect to water pollution: “Three lines of decided cases confirm that the CWA regards nearly everything added to water as a pollutant. The first line of cases holds that fish can be pollutants in some circumstances. A second line of cases questions whether the intentional application of chemicals—by farmers, mosquito control districts, and individual homeowners—are pollutants. The third line of cases considers whether water itself can be a pollutant when someone combines two bodies of water containing different pollutants or different amounts of those pollutants.”

For a more detailed analysis of the Convention, see Chap. 14, Sect. 4.1 in this volume.

According to the World Bank document “Targeting Legacy Pollution,” “Legacy pollution refers to any pollution that remains from past activities where there is no immediately responsible party who can be held liable for the pollution and compelled to carry out remediation.”

Tribunale di Cremona, 18 July 2014, giud. Salvini. The decision and the case are discussed in this volume: see Chap. 4, Sects. 4 and 6.2; Chap. 5, Sect. 1.4.

More recently, another Italian criminal judgement has addressed issues concerning the definition of—literally translated—historical contamination: Corte di Assise di Alessandria, 14 December 2015. In this case the defendants affirmed that the material facts were consistent with the category of historical pollution, as they were merely the current owners and did not contribute to polluting natural resources. The decision denied this on the grounds that the contamination could not be considered definitely past and the harmful consequences were still current. Leaving aside the particular judgement on responsibilities, the case seems rather consistent with the definition of historical pollution here proposed, which is aware of the dynamic nature of the phenomenon, and does not require that the contamination be past and inactive.

For comparison, consider the Bussi sul Tirino case and the Cremona case, as presented in this volume: Chap. 4, Sects. 4 and 6.2; Chap. 5, Sects. 1.2 and 1.4.

On this aspect, see Chap. 2 in this volume.

As is well known, the precautionary principle is prominent within the public international law on the environment, as formalized first with the Rio Declaration on Environment and Development 1992; in particular, Principle 15 states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” For further discussion see DiMento (2003, pp. 18 ff., 129 ff.); additional aspects are also addressed in the present volume: see Chap. 14, Sect. 2.2.

See more in detail Sect. 3.3. Pardy distinguishes between civil law and criminal law: whether or not the use of the precautionary principle as a retrospective criterion to assess past conduct is acceptable for civil law, it is forbidden in criminal law, since in that case the assessment rationale would assume the form of absolute liability (see Pardy 2002, pp. 66, 70 ff.).

Among those considered in national contexts, perhaps only the United States’ Environmental Response, Compensation, and Liability Act (CERCLA) shows a particular attitude to handling issues of this sort, as also acknowledged by Brandon (2013, p. 29). See Chap. 8, Sect. 4.1.4 ff in this volume.

Indeed, the range of remedies in cases of historical pollution has to be understood as wide and not restricted to punitive and criminal sanctions. The analysis of the UK legal system shows how criminal enforcement is extremely residual, while remediation within the clean-up regime—also incentivizing voluntary actions—is the ordinary remedy: Chap. 9, Sect. 1.

The pertinence of the principle at stake as regards remedial activities is demonstrated by European Directive 2004/35 on environmental liability concerning the prevention and remedying of environmental damage.

Concerning the international relevance of such a principle see, Chap. 14, Sect. 2.1 in this volume.

The article presents the case of abandoned mines.

As has been pointed out, “for-profit firms are best suited to address orphaned pollution. This is particularly true of for-profit firms specializing in natural resource development, like energy companies and mining companies. These firms have the necessary resources and expertise to effectively remediate orphaned pollution. However, legal and regulatory obstacles, including permitting requirements and strict liability ‘polluter pays’ statutes often prevent effective voluntary engagement by for-profit firms in environmental remediation” (Larson 2013, p. 994).

The case Smaltini v. Italy, decided by the ECHR (application n. 43961/09), demonstrates how difficult it is to prove a causal link where pollution is claimed to be the cause of personal injuries—consistent with the historical pollution framework. Ms. Smaltini was diagnosed with acute myeloid leukaemia and then brought proceedings against the manager of the huge steel plant (Ilva) located in her city (Taranto), assuming that its emissions, prolonged over time, led to the occurrence of her pathology. But the proceedings were discontinued, the judge having taken into account the experts’ opinion that the incidence of the particular type of leukaemia among people of the same age as Ms. Smaltini was no higher in the local area than in other regions. Thus, the causal link could not be proved. Subsequently Ms. Smaltini laid a complaint before the European Court of Human Rights regarding the violation of the right to life (Art. 2), as in the domestic legal system the protection of her basic interests had not been assured, the proceedings having been discontinued. The ECHR rejected her application as ill-founded, because it was not demonstrated scientifically that there was a causal relation between the pathology and the polluting emissions. In December 2012 Ms. Smaltini died. More recently, new proceedings have been activated before the ECHR, stemming from a complaint by 182 citizens concerning the violation of their right to life and health. This case is discussed in the present volume by D. Vozza, Chap. 14, Sect. 3.3.3.

According to Vandenbergh’s opinion, the term “second generation” indicates those sources of pollution or those problems that are still relevant despite the legal tools introduced and enhanced during the 1970s and 1980s in the USA. While those laws focused “on [a] relatively small number of large industrial polluters,” the “remaining ‘second generation’ sources are often not large point sources, but numerous, small, diffuse non-point sources, such as the many contributors to urban and agricultural runoff into waterbodies” (Vandenbergh 2001, p. 191).

With regard to this argument it is pertinent to recall that in connection with their locational aspects, environmental issues have been divided into “brown,” “green,” and “white.” As White has pointed out: “Brown issues tend to be defined in terms of urban life and pollution (e.g., air quality); green issues mainly relate to wilderness areas and conservation matters (e.g., logging practices); and white issues refer to science laboratories and the impact of new technologies (e.g., genetically modified organisms)” (White 2008, p. 98).

This kind of argument is pointed out explicitly in the following: “When the harm occurs many years after the act, proof of causation can be difficult. The source of groundwater contaminants, for example, becomes more speculative if the spread of leachate over a period of time has been affected by natural processes, or if more than one pollutor has been operating in the area. In the case of cancers, such as leukemia, it is undisputed that the disease is linked statistically to radiation, but the plaintiff may have been exposed to more than one source over the period of latency, and the defendant can always say that it is impossible, in a given case, to know whether this cancer was due to radiation or ‘natural’ forces” (Milhollin 1979, p. 6).

The same is relevant in cases of exposure to asbestos, where proof of causation can be satisfied only when it has caused “signature injuries,” that is injuries “uniquely tied to exposure to it.” Otherwise, issues related to exposure to asbestos are emblematic of the “causation conundrum”: “in a modem world awash in pollutants from multiple sources, the difficulty of proving causal injury has made common law liability too crude a vehicle to compensate those exposed to environmental hazards” (Percival 2010, p. 42). Moreover, as the etiopathogenetic dynamic activated by asbestos is extremely long and latent, a significant period ordinarily separates exposure from the disease occurrence, so that cases concerning liability for such exposure can be considered consistent with issues that are typical for historical pollution.

The basics of the domestic legal systems addressed in the present research are set out in the relevant chapters in this volume.

The criminal courts’ attitude towards cases of historical pollution in Italy can be considered an example of the adaptive interpretation here described: see Chap. 4 in this volume.

The experiment conducted by Kamin and Rachlinski had noteworthy results. Consistent with the tort case petition of Kinsman Transit Co. (1964), the authors submitted the same case to different groups of students, who were required to simulate an administrative hearing (in foresight) and a mock trial. In particular, “[i]n the foresight condition, participants learned that a city had constructed a drawbridge and needed to determine whether the risk of a flood warranted maintaining a bridge operator during the winter when the bridge was not in use. Hiring the operator would serve as a precaution. The operator would monitor weather conditions and raise the bridge if the river threatened to flood. The foresight condition asked participants without outcome knowledge to decide whether a flood was sufficiently probable for the city to appropriate funds for the operator” (Kamin and Rachlinski 1995, p. 93). Conversely, “[t]he hindsight manipulations contained the same background facts. The story continued, however, stating that the city had decided not to hire the operator. During the first winter of the bridge’s existence, debris lodged under it. This resulted in a flood that could have been prevented had an operator been hired. The flood damaged a neighbouring bakery, whose owner then sued the city. Participants in the hindsight condition were instructed to hold the city liable if the flood was sufficiently probable that the city should have hired the operator to prevent it. The second hindsight condition added a debiasing manipulation in which the judge instructed participants to recognize the influential effects of hindsight and to consider alternative outcomes as had the city in foresight” (ibid.). The results demonstrated the significant incidence of hindsight bias, showing how “a good faith effort to determine a reasonable level of precautions in foresight may receive harsh judgment when viewed in hindsight” (Kamin and Rachlinski 1995, p. 99); on the contrary, no influence was played by debiasing techniques. Indeed, only 6 participants out of 25 (24%) in the foresight perspective decided to hire the operator, while conversely 29 participants out of 51 (56.9%) among those who participated in the two combined hindsight conditions affirmed that the operator should have been hired.

Pardy entitles one section of his essay “Passing the buck,” and points out: “If the precautionary principle is to be applied to prosecutions for violation of this provision, private citizens and commercial operations will be required to do what government cannot or will not do itself, which is to determine and identify the circumstances that fall on either side of the line. The regulator thus avoids applying the precautionary principle to itself, and instead foists it upon parties with fewer investigative resources” (Pardy 2002, pp. 76–77).

Saha and Mohai explore the temporal concerns regarding political choices in the siting of waste facilities, where environmental justice claims backed up by legislative action apparently led to greater exposure to noxious substances by more vulnerable groups. As the authors remark, “[o]ur findings support the argument that siting increasingly has followed the path of least resistance as a result of unprecedented growth in public environmental concern and citizen action. Institutional factors also are likely to have contributed to the historical patterns” (Saha and Mohai 2009, p. 338). “As state and federal agencies assumed responsibility for approving siting proposals of industry, legislatively mandated permitting processes have provided new political opportunities for public involvement, both administrative and judicial. Distributional politics appear to have prevailed such that those segments of the population with fewer political, organizational, and technical resources have borne a disproportionate share of the society’s environmental burden” (ibid.).

See the distinction between “gift” and “poison” as symbolizing two opposite attitudes towards the same element, due to the evolution over time of the social perception, in Chap. 2, Sect. 6.

In this respect the case of exposure to asbestos is emblematic: see Tombs (2008, p. 24).

The author here follows the characterization of environmental victimization used in Skinnider (2011).

For the emergence of studies centred on the incidence of crime rates in local areas, considering issues of victimization and crime prevention, see Evans and Fraser (2003, pp. 81 ff).

Consider among the others the case of Spain: Chap. 10, Sect. 3.1.

This is the case for France, as presented in this volume: see Chap. 12, Sect. 2. Conversely, in Germany the concept of Altlasten seems to express the relevant issues: see Chap. 11, Sect. 1.1.1.

The surge in interest in environmental issues can be generally located in the 1970 and 1980s.

See Chap. 8, Sect. 4.1.4.