Definition and Fundamentals of Environmental Liability
Environmental liability refers to the legal framework that governs responsibility for environmental damage. Its purpose is to protect the environment from harmful impacts by holding individuals or companies accountable when their actions or failures to act cause environmental damage. Environmental liability may be based on national, European, or international legal sources and constitutes a core instrument of environmental law.
Scope and Objectives
The central purpose of environmental liability is to prevent or remedy environmental damage and to minimize the associated risks for humans, animals, soil, water, air, and biodiversity. It also aims to have a preventive effect by encouraging potential perpetrators to behave cautiously and responsibly.
Legal Basis of Environmental Liability in Germany
The statutory foundations of environmental liability in Germany are based on various laws that regulate both public law and private law claims. The key laws at federal level are the Environmental Liability Act (UmweltHG), the Water Resources Act (WHG), the Federal Immission Control Act (BImSchG), the Federal Soil Protection Act (BBodSchG), as well as specific provisions in other environmental statutes. Additionally, the Environmental Damage Act (USchadG) transposed the European Environmental Liability Directive.
Environmental Liability Act (UmweltHG)
The Environmental Liability Act regulates strict liability for environmental damage caused by certain high-risk installations. It provides particular protection to third parties whose health or property is harmed by environmental impacts (§ 1 UmweltHG).
Scope of Application
The UmweltHG covers property or personal damage resulting from environmental impacts originating from facilities requiring permits. Fault is not required; the decisive factor is the occurrence of damage from the operation of the facility.
Triggering Events of Liability
Liability is triggered in particular by the release of substances, contamination of water, escape of gases, or the emission of noise, vibrations and similar environmental effects.
Exceptions and Exclusion Grounds
The law provides for certain exceptions, such as for damage that was unavoidably caused by force majeure or if the facility was operated in accordance with generally accepted technical standards.
Environmental Damage Act (USchadG)
The Environmental Damage Act implements the European requirement of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. It regulates public-law responsibility for the causation of certain types of environmental damage to protected species and habitats, water bodies, and soil.
Remediation and Prevention
According to USchadG, the primary obligation is to restore the damaged environmental state (remediation duty) as well as to carry out measures to prevent future damage (prevention duty). The relevant authorities may issue appropriate remediation orders to the responsible party.
Scope of Application and Operator Obligations
The USchadG applies to operators of particularly hazardous facilities as well as to other activities with risk potential. Responsibility may arise even without fault, especially regarding emission risks.
Other Relevant Regulations
In addition to UmweltHG and USchadG, numerous other laws are significant to environmental liability. The Federal Soil Protection Act contains liability provisions for the remediation of contaminated sites. The Water Resources Act governs responsibility concerning water pollution and accidents involving water-endangering substances. The Federal Immission Control Act sets out liability for emissions originating from installations.
Forms of Environmental Liability
Strict Liability
In many cases, environmental liability is structured as strict liability. The decisive factor is solely the causality of the installation or activity for the damage incurred, irrespective of whether the operator could have prevented the damage.
Fault-based Liability under the German Civil Code (BGB)
In addition to the special, strict liability provided by statute, fault-based liability under the German Civil Code (BGB) continues to apply, for example for unlawful acts (§ 823 BGB). This requires that culpability exists in the form of intent or negligence.
Public-law Responsibility
In addition to civil law claims, authorities can require remediation of environmental damage or order measures to avert danger on the basis of public law provisions. This particularly relates to actions to eliminate dangers or disturbances as well as reimbursement of the costs incurred for such actions.
Subjects and Addressees of Liability
The addressees of liability are generally operators of installations that pose potential environmental risks. In certain cases, however, liability can also extend to property owners, former operators, or other responsible parties, such as in the context of contaminated land law.
Scope and Enforcement of Environmental Liability
Types of Damage
Environmental liability encompasses personal injury (e.g., injuries or fatalities), property damage (such as damage to buildings or installations), as well as environmental damage in the narrower sense (unlawful alterations to soil, water, fauna and flora).
Entitled Claimants
Civil law claims for environmental damage may generally be asserted by directly affected parties, such as injured persons or property owners. Public-law claims for remediation and hazard elimination are available to the competent authorities.
Limitation Period
The limitation of claims arising from environmental liability is regulated differently depending on the statute. Under the UmweltHG, the limitation period is generally three years from knowledge of the damage and the liable party, but no more than 30 years from the damaging event.
Burden of Proof
Under the UmweltHG and similar regulations, the claimant generally bears the burden of proof for the existence of the damage and its causation by the facility’s operation. In certain cases, the burden of proof may be reversed in favor of the injured party.
Insurance and Risk Management
To reduce potential liability risks, facility operators often take out specialized environmental liability insurance policies. These policies cover the financial risk of compensation claims arising from environmental liability cases.
Environmental Liability in the International Context
Environmental liability is regulated not only at national but also at European and international level. Particularly noteworthy is the Environmental Liability Directive (2004/35/EC) of the European Union, which establishes a uniform minimum standard across Europe for liability in environmental damage cases. International agreements such as the Basel Convention and various environmental protocols also exist, covering cross-border environmental liability cases.
Conclusion and Outlook
Environmental liability is a complex and dynamic legal area within German and European environmental law. It encompasses both civil and public-law liability regimes and aims to protect the environment from harm and to achieve a fair allocation of liability risks. Due to the ongoing development of technology and the emergence of new environmental hazards, the law of environmental liability is also likely to continue evolving and adapting in the future.
Frequently Asked Questions
Who is liable in the event of environmental damage under German environmental law?
Liability for environmental damage is fundamentally based on the polluter-pays principle. Under the Environmental Liability Act (UmweltHG), the primary liable parties are operators of installations whose operation causes environmental damage. It does not matter whether the operator acted intentionally or negligently; liability is typically a form of strict (no-fault) liability. This means that merely causing environmental damage through the operation of a facility is sufficient to trigger legal liability. Liability generally extends to legal entities (such as companies) as well as sole proprietors, provided they operate a facility requiring a permit as defined in § 3 UmweltHG. Possessors, owners, or users of other potentially environmentally hazardous establishments can also be liable if they are causally responsible for the damage. There is a specific rule for multiple polluters: If several installations are jointly responsible for the damage, all are jointly and severally liable regardless of fault (§ 7 UmweltHG).
What types of damage are covered by environmental liability?
Environmental liability covers damages caused to the environment itself, in particular damage to soil, air, water, and to certain protected species and habitats. The protected environmental sphere is detailed in § 2 UmweltHG. Environmental liability in particular encompasses impacts such as water pollution, damage to agricultural land by chemicals, damage to flora and fauna, or air pollution through emissions. It is essential that actual damage has occurred to environmental assets; pure financial losses or mere loss of use are not generally covered by UmweltHG, unless an express rule exists under special laws such as the Water Resources Act (WHG) or the Federal Nature Conservation Act (BNatSchG).
What obligations does the operator have after the occurrence of environmental damage?
Following the occurrence of environmental damage, the operator has an immediate duty to notify and to act, towards the competent authorities, typically the state environmental agencies or lower nature conservation authorities. The operator must take all reasonable and necessary measures to prevent the spread of the damage and to eliminate any adverse effects already incurred (so-called damage limitation and remediation obligations). If the operator fails to take these measures, the authorities may order substitute performance, and the costs can be imposed on the operator (§ 8 UmweltHG). Additionally, there are also notification obligations under supplementary regulations such as the Major Accidents Ordinance.
Are there exceptions to operator liability?
There are a few, narrowly limited, exceptions to the principle of strict liability. According to § 8 UmweltHG, liability does not apply if the damage was caused exclusively by force majeure, war, civil commotion, or by an unforeseeable intervention by a regulatory authority. Exemption from liability is also possible if the damage was caused by actions of third parties over whom the facility operator had no influence and which could not have been prevented despite all reasonable safety measures. However, the operator must always demonstrate that there was no fault on his part and that all due diligence requirements were met. The burden of proof for the existence of the exception lies with the operator.
Is there a limitation period for environmental liability and if so, what is the duration of the limitation period?
Yes, claims arising from environmental liability are subject to limitation. According to § 13 UmweltHG, the regular limitation period is three years from knowledge of the damage and the damaging party. Irrespective of this, an absolute limitation period of 30 years from the occurrence of the damage-causing event applies. Special scenarios (e.g., ongoing environmental harm) may cause the limitation period to start anew. It is recommended that injured third parties monitor the time limits carefully in order to assert any claims in due time.
Who bears the burden of proof in the case of environmental damage?
In environmental liability law, there is generally a presumption of damage, provided there is a connection between the operation of the facility and the occurrence of damage. The injured party need only prove that damage has occurred and that the facility’s operation was potentially capable of causing this damage. The operator must then demonstrate, in accordance with § 6 UmweltHG, that there is either no causal link or that he has met all due diligence requirements and, where applicable, that an exemption from liability applies. As a result, the enforcement of compensation claims is considerably facilitated for injured parties.
Are there special regulations for cross-border environmental damage?
For cross-border environmental damage—that is, where damage occurs in a neighboring state—international and European laws apply in addition to national law. The UmweltHG expressly refers in such situations to international agreements, such as the Lugano Convention or the UNECE Convention on Civil Liability for Environmental Damage. In principle, the operator is also liable for damage abroad if it is based on the same causal connection as within Germany and if the damage would also constitute a liability claim under a comparable legal system. However, enforcement abroad is subject to the civil procedure rules in force in that country.
