By Kaden Pradhan
London, United Kingdom
Humanity stands on the precipice of the greatest disaster it has ever faced: climate change. Our world is rapidly converging upon several points of no return that, if attained, will inevitably lead to catastrophic events. Increasingly, experts in the field are warning that, if we do not take action now, we may be responsible for one of the most damaging series of calamities in our planet’s history. Yet, despite the exigency of this situation being proved on numerous occasions, many still deny the existence of the climate emergency, or state that the need to act is not pressing.
The field of environmental law is crucial to this crisis. One of the many things we need to do to help tackle the climate emergency is to assign duties to different people. From a legal perspective, we can examine how levels of culpability, accountability, and responsibility vary between stakeholders in certain situations. Crucially, the law allows us to identify who or what is liable for a certain activity. This can be used in the courts to compel a party to perform their duties, through a wide range of injunctions and court orders.
Before tackling the central matter of the question, it is useful first to address some of its components. First, what environmental “responsibilities” could we, in theory, assign? In most cases, they fall into two discrete classes. Some duties are active, while others are passive. Active responsibilities could include, for instance, the construction of a wind farm, afforestation or re-wilding programmes, and the demolition of a coal power plant. Conversely, removing contamination, halting illicit pollution, and preventing poaching are all examples of passive duties. Legally speaking, the party on whom liability falls varies radically between these two classifications, and in many cases of active duties, there may be no legal obligation at all.
From where do we derive liability? Simply speaking, it is either codified in the underlying legislation that forms the construction of our laws, known as statutory law, or in the precedent set out by decisions made in judicial courts in centuries past, known as case law. Legal infrastructure varies from nation to nation, but in general, we can classify countries into categories. Most Western states have either a civil law system, where statute dominates, or a common law system, where precedent is held of higher import. When scrutinizing a subject related to environmental law in the U.K. or the U.S., it is important to recognize that both these countries have common law systems, whereby past decisions generate precedent that can be applied to later judgements. Some instances of precedent can go on to form doctrines, which are rules of interpretation of law that are generally adhered to and can even be presented in a court setting.
Currently, in the U.K., environmental responsibilities are laid out both in precedent and in Acts of Parliament. One critical piece of statute is the Environmental Protection Act (1990), which lays out different ‘regimes’ that each define one key area of passive environmental responsibility, and the parties culpable for a violation. These include the disposal of waste, risk assessment of genetically modified organisms, and littering. One crucial example of where the Act assigns liability is for its regime on contaminated land. Part IIA, Section 78F “has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.”[1] In general cases, the person who caused the contamination is liable to remediate it: “any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person”[1] for remediation. However, if that person cannot be found, then “the owner or occupier for the time being of the contaminated land in question is an appropriate person.”[1]
This case does not apply to active responsibilities. Passive duties are largely corrective; some damage has occurred, and for the sake of the environment, it ought to be rectified. Active duties require a spontaneous, self-generated desire to improve or promote measures that tackle climate change—these measures are usually part of a grander plan, such as a programme to encourage the development of solar farms. In these instances, the law does not usually obligate any party towards these duties.
Some doctrines also should take responsibilities for the environment, particularly interpretations of precedent that deal with the subject of liability itself. For example, Rylands v. Fletcher was a breakthrough case that established a system of strict liability. It established that, “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”[2] This ruling made clear that those who caused damage to another’s land did not have to prove they breached a duty of care to be the assignee.
The case went on to play a pivotal role in a more pertinent case, Powys County Council v Price and Hardwick. The Court of Appeal overturned a lower judgment, ruling that Powys County Council was not liable for the contamination of land that occurred due its predecessor’s operation of a landfill site on farmland. This is because the Environmental Protection Act (1990) had not yet come into effect, and so liability was transferred to the owners of the land, Messrs Price and Hardwick. This held with an earlier case, National Gas Grid (formerly Transco plc) v Environment Agency, where the House of Lords decreed that liability does not transfer from one organization to its successor in terms of the mitigation of contaminated land. Both rulings pierce or reconfigure the strict liability of Rylands v Fletcher to at least some extent.
That, then, is the lay of the land in U.K. law: in general, the assignees of passive, corrective environmental responsibilities are those who caused the damage in the first instance, or else the owners or occupiers of the land if they are untraceable. Intention does not have to present, but the successors of a certain group do not automatically retain liability either. This complex network of accountability, established by conflicting doctrines, is still under scrutiny by lawmakers and academics.
Taking a jurisprudential perspective, however, prompts us to address the question in a more theoretical space. Crucially, we must ask what responsibilities, active or passive, the law “should” assign. This requires us to evaluate the potential benefits and drawbacks of a stricter system that places more accountability on the owners and occupiers of land. We can also look at examples of such structures around the world.
Imposing a uniform liability on owners and occupiers certainly has its advantages. Firstly, it allows for a strong, clear statutory basis that avoids obfuscation from common law rulings. For instance, stating with clarity in legislation that ‘the owner or occupier of land shall be responsible for stopping poaching / removing contamination / halting illegal logging’ means that they would have a very weak argument in a court of law if they aimed to transfer this liability to another party. An argument could also be made that it is easier to enforce the law on a private citizen than on a civic authority. Police agencies certainly find it easier to deal with people (owners and occupiers) than bodies like a local council or environment agency. Nonetheless, this could be countered when considering that most of the ten biggest landowners in the U.K. are actually government organizations anyway, like the Ministry of Defense and DEFRA. It is clear that there have been results where systems like this have been implemented elsewhere. In Hong Kong, for example, the burden is upon the owner of land to ensure that any slopes they have are well-managed and will not collapse. This helps avoid environmental hazards like landslides. Since 1970, the laws surrounding this liability have caused a 70% decrease in the incidence of landslides. This is because landowners were faced with HK$50,000 fines or an imprisonment of up to one year if they failed to comply with the slope safety laws.
On the other hand, what if the owner or occupier cannot afford to fulfill their responsibility, or pay the associated fines? Must they be incarcerated, as in Hong Kong? This is one solution; however, it does not actually benefit the environment in the long run. Another option is that the responsibility is then transferred to the state. But in that case, the landowners lose their incentive to comply.
The situation is rather different when it comes to active duties. These are usually part of larger policy plans that a government will enact to tackle the climate crisis. I would argue it is unnecessary to place liability for active duties on owners of land. It is not only unfair to them, as they are disproportionately impacted compared to other citizens, but also may vary from government to government, and some duties may be worse than others.
The current state of environmental responsibilities in the U.K. is complex and not easily distilled. I argue, however, that overall, it makes much sense for passive duties to be placed strictly upon owners / occupiers of land, but much less sense for the same rationale to be employed in terms of active ones.
Bibliography
[1] Environmental Protection Act 1990, c. 43., available at: https://www.legislation.gov.uk/ukpga/1990/43/
[2] Bohlen, Francis H., “THE RULE IN RYLANDS v. FLETCHER. PART I.”, 1911, p. 300, available at: https://scholarship.law.upenn.edu/penn_law_review/vol59/iss5/2/
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