Cost Recovery of Preventive and Remedial Measures against Environmental Damage from the Polluter through Tort Law: European Spill Over, Troubled National Waters?

Abstract When it comes to environmental damage, a basic tenet is that the polluter should pay. Nonetheless, public authorities regularly incur clean-up costs. Environmental damage often transcends the individual polluter, affecting a plurality of personal and/or public goods. Its diffuse extent and complex nature make environmental protection a collective interest. Thus, it comes as no surprise that public authorities can be legally obliged to take preventive and remedial measures against environmental damage. However, when public authorities act on such a legal obligation, the question arises: whose burden are the costs of the measures taken? The emergence of the polluter pays principle indicates a preference to allocate the costs to those who elicit the legal obligation. What role has tort law to play in this regard? Even though it is certain that public authorities are not exempt from tortious liability themselves, doubts exist whether they can claim in tort as wronged parties. Public authorities represent society and embody the public interest. Tort law, however, seems to mainly focus on private interests. Nevertheless, the Belgian transposition of the European Environmental Liability Directive, which obliges the polluter to pay for the prevention and remedial measures, allows for a claim in tort. This contribution inquires whether such a claim allows for the recovery of all costs mentioned in the directive, even general expenses. From a comparative law perspective it examines how the polluter pays principle, advocated for on the international legal scene, is to be imbedded in national tort law. In particular, it examines whether national tort law acts as a straitjacket for the principle, or whether the principle might, conversely, serve as a crowbar to break open this field of law to allow compensation for harms that traditionally would not be eligible for damages. It finds the principle has a harmonising influence but is not absolute.