Civil and criminal liability of public authorities for environmental damage.
| Autor | Bernat Mullerat |
| Páginas | vLex |
Many centuries before the birth of Environmental Law as such, public authorities sought to protect human health and safety through combating urban pollution of key resources such as drinking water and air. Private law is aimed also at protecting the rights of individuals from the property damage caused by the neighbours' polluting activities.
In the fifth century, the Romans complained that the Tiber river was very polluted by the waste generated by the city and protested due to the terrible odours emanating from various homes. There are also accounts of various ordinances issued in the Middle Ages prohibiting certain polluting activities in cities.[1]
In this century, the public concern over the state of the environment due to massive increases in production has led governments to regulate industrial processes as well as to adopt measures to combat pollution of the various media. The increasing interference of public authorities in all aspects of life has resulted in the development of techniques for asserting the liability of public authorities. Just as the state powers have become overwhelming, said techniques have become more sophisticated and even stricter. Thus, breach of the public authorities' duties or simply damage arising from a public service may, under certain circumstances, give rise to public authorities' liability.
This paper examines the main features of the techniques developed by Spanish law in connection with civil and criminal liability of public authorities.
1- CIVIL LIABILITY OF PUBLIC AUTHORITIES
Background
The principle of public authorities' liability for damage is enshrined in article 106.2 of the Spanish Constitution, which provides that :
'Individuals shall be entitled, in the terms provided by law, to be compensated for any damage suffered to their assets and rights, except in case of 'force majeure', provided that the damage results from the public services activity'.
The basic principle is that individuals must be compensated for the damage suffered arising from the normal or abnormal performance of public authorities' activities, except if the public authorities prove the occurrence of force majeure. The Spanish Constitutional Court has held that public authorities' liability should be interpreted in favour of the individual's right[2]. This is further developed by Title X of Act 30/1992 of 26 November, on Common Administrative Procedure, which will be examined below.
It is striking that public authorities' liability is more vigorous than civil liability, since public authorities may, under certain circumstances, be held liable even if the public service has been adequately performed. The reasoning behind this is the government's liability for the damage caused to the individual (i.e. as opposed to the community). For instance, while neighbours may not be compensated for the nuisance caused by public works in the vicinity (i.e. they must bear such a nuisance as a social charge), shop owners may be compensated for the economic damage caused by such works.
For instance, the Supreme Court has recently held the Autonomous Community of Valencia liable for the damage caused to a car trader who, as a result of the road infrastructure works, suffered a significant decrease of sales[3]. In this case, the public works hindered road traffic during some 16 months and eventually forced the plaintiff to temporarily close his business.
Despite the broad terms of the government's powers and jurisdiction over environmental protection[4], the government's liability is not triggered in the event of any damage to the environment. Otherwise, public authorities would serve as insurers of environmental damage, at the expense of socialising the cost of repair of the damage.
When examining the government's general liability arising from its inactivity to fully enforce its powers and jurisdiction, the Supreme Court has held that:
'This judicial prudence increases in those cases where the damage is blamed on the government's inactivity, because the increasing, and each time more general, powers that the law confers on the government [...], the liability of public authorities could reach a gigantic scope if it were admitted that it arises from the government's inefficiency in pursuing the aims contemplated by the law (e.g. prosecution of crime, environmental protection, coordination of traffic, health care) [...]. The relativism or case-by-case nature of the matter, as far as the government's mere inactivity is concerned, perhaps only allows to conclude that neither the pure abstract duty to comply with certain aims is sufficient to generate its...
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