Turkish Law Blog
Environmental Policies of European Union and Environmental Liability with regard to Polluter Pays Principle
Nature’s fight with humanity keeps continuing since the invention of fire. As late as, the environmental damages increased with developments in industry and technology, and serious consequences without recourse show up. Polluted air, chemical spills, and harmful use of land are a few examples of how industry can have a negative impact on our natural environment.
When the environment as an issue came to the fore of public debate in the late of 1960s and early 1970s, European Economic Community –as European Union was then- recognized the significance of cross-border cooperation to address common problems. In 1973 the European Comission presented a first Environment Action Program that was approved by the Council . The Single European Act (1986) marked a more prominent role for environmental protection in EU policy making, introducing the principle that it should be considered in all new Community legislation. EU environmental policy was substantially expanded by the Treaties of Maastricht (1992) and Amsterdam (1997), which made sustainable development one of the EU’s central objectives 
In the course of the past four decades, European Union environmental policy and legislation expanded dramatically, and gradually become one of the main EU areas of intervention. The EU has agreed over 200 pieces of legislation to protect environment, since approving the First Environmental Action Program. The EU is an important – even an ‘influential’ – actor in international environmental negotiations and its environmental policy is significantly intertwined with other international and national environmental policies.
The present paper aims to provide an analysis of businesses’ environmental liability with regard Directive 2004/35/EC of the European Parliement and of the Council. It seeks to examination of environmental liability with regard to “polluter pays principle” to prevent and remedy environmental damage. It also higlights the EU approach to Turkey’s environmental policies with reference to the Revised Indicative Strategy Paper for Turkey (2014/2020).
2. WHAT IS ENVIRONMENTAL LIABILITY AND WHICH TYPES OF DAMAGES SHOULD BE COMPENSATE?
Firstly we should point out that what is environmental damage. Environmental damage is defined by the Directive 2004/35/EC of the European Parliement and of the Council as
- damage that significantly affects the environmental (ecological, chemical or quantitative) status of water resources,
- damage to landcreating a significant risk to human health;
- damage to protected species and natural habitats.
Environmental liability aims at making the causer of one of these environmental damages (the polluter) pays for remedying the damage that he has caused. Environmental regulations lay down norms and procedures aimed at preserving the environment. Without liability, failure to comply with existing norms and procedures may merely result in administrative or penal sanctions. However, if liability is added to regulation, potential polluters also face the prospect of having to pay for restoration or compensation of the damage they caused.
We should point out that, not all forms of environmental damage can be remedied through liability. For the latter to be effective:
- there needs to be one or more identifiable actors (polluters);
- the damage needs to be concrete and quantifiable; and
- a causal link needs to be established between the damage and the identified polluter(s).
Therefore, liability can be applied, for instance, in cases where damage results from industrial accidents or from gradual pollution caused by hazardous substances or waste coming into the environment from identifiable sources. However, liability is not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with the activities of certain individual actors. Examples are effects of climate change brought about by CO2 and other emissions, forests dying as a result of acid rain and air pollution caused by traffic.
3. IMPLEMENTING THE KEY ENVIRONMENTAL PRINCIPLE
Environmental liability is a way of implementing the main principles of environmental policy enshrined in the Treaty on The Functioning of The EU Article 191/2 (Ex Article 174 TEC). The Article 191/2 TFEU states that;
“Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”
The ‘polluter pays’ principle is the most significant principle. If this principle is not applied to covering the costs of restoration of environmental damage, either the environment remains unrestored or the State, and ultimately the taxpayer, has to pay for it. So, in the case of not implementing the polluter pays principle, State and taxpayers will get damaged too besides the environment.
In the meantime, Directive 2004/35/EC of the European Parliement and of the Council states that the prevention and remedying of environmental damage should be implemented through the furtherance of the ‘polluter pays’ principle, as indicated in the Treaty and in line with the principle of sustainable development. The fundamental principle of the Directive should therefore be that an operator whose activity has caused the environmental damage or the imminent threat of such damage is to be held financially liable, in order to induce operators to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liabilities is reduced. In another saying, adopting the polluter pays principle in the industries helps to decrease the risk to damage the environment and reduce the financial burdens on the businesses in the industries.
4. THE EU APPROACH TO TURKEY’S ENVIRONMENTAL POLİCİES
Recently, the EU adopted the Revised Indicative Strategy Paper for Turkey (2014/2020) and explained analysis about Turkey’s environmental policies with related to accession process in EU. According the Indıcatıve Strategy Paper (ISP), given the investment needs estimated previously by the authorities and taking into account what has been spent up to now, it is estimated that Turkey still needs to invest over EUR 43 billion in its environment sector to comply with EU requirements . That means, current legislations and applications about environment in Turkey is not enough to comply with the EU requirements which are the most comprehensive environmental legislations.
As a conclusion, if we take in consideration the Turkey’s geographical location which is bordering both the Mediterranean and the Black Sea and the natural and historical beauties around the Turkey; we can surely say the environmental policies and applications of these policies is critically important for the nature, the people and the future of Turkey. Besides that “polluter pays principle” must be adopted and practised by authorities in Turkey properly, to compensate the environmental damage and to prevent the worse damages.
- Jordan, A.J. and C. Adelle (ed.) (2012) Environmental Policy in the European Union: Contexts, Actors and Policy Dynamics (3e). Earthscan: London and Sterling, VA.
- Johnson, S.P. and Corcelle, G. (1989) The Environmental Policy of the European Communities, Graham & Trotman, London.
- Revised Indicative Strategy Paper for Turkey (2014/2020 – Adopted on 10/08/2018)
- White Paper on Environmental Liability presented by the Comission (COM-2000-66 Final 09/02/2000)
- The Social-Environmental Function of Property and the EU ‘Polluter Pays’ Principle: The Compatibility between Italian and European Law - Valeria Corriero (Italian Law Journal)
- The Evolution of EU Policy and Law in the Environmental Field:Achievements and Current Challenges – Emanuela Orlando (Transworld Journal – April 2013)
- EU Environmental Policy – James Gubb (Civitas Journal – March 2007)
LIST OF ONLINE SOURCES:
- The polluter-pays principle and environmental liability – European Union
- Dimas, Stavros (23 March 2007). "Celebrating the Environmental Union". BBC News. Retrieved 15 August 2007.
LIST OF LEGISLATIONS:
- Treaty on the Functioning of the EU
- EU Environmental Liability Directive
- Directive 2004/35/EC
 Retrieved from, ordan, A.J. and C. Adelle (ed.) (2012) Environmental Policy in the European Union: Contexts, Actors and Policy Dynamics (3e). Earthscan: London and Sterling, VA
 Retrieved from, EU Environmental Policy – James Gubb (Civitas Journal – March 2007)
 Retrieved from, White Paper on Environmental Liability presented by the Comission (COM-2000-66 Final 09/02/2000)
 Retrieved from, Revised Indicative Strategy Paper for Turkey (2014/2020 – Adopted on 10/08/2018)