Good news for everyone concerned about environmental pollution and its effects on our health. The ruling of the European Court of Human Rights (ECtHR) in the Cannavacciuolo case creates an opening, based on Article 2 of the European Convention on Human Rights (ECHR), to a more nuanced approach to the causality requirement in environmental cases. This lowers the threshold for victims to hold governments accountable.
What was at play?
The case was brought by residents of the Italian region of Campania. For years, this area has suffered serious environmental problems due to illegal waste dumping and burning. The pollution is so severe that parts of the region are known as “Terra dei Fuochi,” or “Land of Fires.” The Italian government had been aware of specific problems since the 1990s, including a statistically abnormal number of cancer cases in the region.
The precautionary principle requires action
The Court underlines the importance of the so-called precautionary principle. While studies do not yet show a clear, direct link between exposure to pollution and the development of certain diseases, the precautionary principle should have prompted Italian authorities to examine risks more closely and take protective measures.
The Court rebukes governments that argue that sufficient scientific certainty must first exist before a duty to act arises. That would render Article 2 ECHR useless in practice, the Court said.
ECHR lowers causation threshold.
Interestingly, the Court further lowers the causation threshold by holding that since victims were exposed to a very high risk, it is not appropriate to require conclusive proof of a causal link between illness and exposure. Instead, according to the Court, it is enough to show plausibly that:
- there is serious environmental pollution;
- scientific evidence exists that this pollution poses certain health risks to the population.
In previous rulings, the ECtHR still required a direct demonstrable link between exposure to environmental pollution and the victim's illness or death for Article 2 ECHR to apply. This often presented victims with significant evidentiary problems. The Court had already applied a relaxation of the causality requirement in rulings on Article 8 ECHR (right to private, family life). The Court is now applying this relaxation to Article 2 ECHR as well.
Gamechanger for legal practice?
This ruling seems an important step forward. Article 2 ECHR is a stronger remedy than Article 8 ECHR. Governments can less easily hide behind their discretion when it comes to the right to life; Article 2 ECHR leaves almost no room for balancing economic interests and the interest of public health. Due to the lowered causality threshold, victims can now more easily invoke Article 2 ECHR.
And what does this mean for environmental damage claims?
The ECtHR has relaxed the rules: if there is scientific evidence that pollution can be harmful, and people have been exposed to it, that is now enough to force the government to act.
For damages claims against governments, this ruling is also important. In those cases, it is difficult for victims to prove that their damages (read: health problems) are a direct result of exposure to pollution. A good example is PFAS pollution in the Netherlands. It is complicated to prove that PFAS exposure is the cause of certain diseases. If the lowering of the causality threshold is applied in the case of damage claims, it will mean a very welcome improvement in the position of environmental victims seeking compensation for their losses.
Or are we cheering too soon?
The Court's assessment takes into account that the pollution in this case was illegal. The Court does not clearly explain why this is relevant to the application of Article 2 ECHR. This raises the question of whether the relaxation of the causation requirement in this ruling is limited to illegal acts, or is also applicable if the pollution was caused by other types of acts.
Conclusion
You can cheer cautiously. The new approach means more chance of justice for victims of environmental pollution. A step in the right direction in the fight for a healthy and safe environment.
What can you do?
Are you suffering damages due to environmental pollution? Then contact us for a free consultation. We will be happy to explore with you the legal possibilities in your situation.
This blog was written by Lieske de Vos. She no longer works for us. If you have any questions about this blog or would like to talk further about this topic, please contact Puck van Maanen.