The system of liability of the pollutant "from pure causality" outlined by the Court of Cassation, with the ruling in question, seems to stand, on the one hand, in contrast with the evolution of the Euro-unitary system in terms of environmental responsibility, - where, also by means of the "polluter pays" principle, a system of objective responsibility for this subject is privileged, on the other hand in friction with the general principles on the subject of responsibility, when the responsibility of the pollutant as a form of responsibility other than the objective one. Further issues of great interest to the interpreter concern the legal nature of the claim by the owner against the pollutant and the partial nature of the environmental remediation obligation. These elements lead to a reflection on the self-sufficiency of the environmental responsibility system or its permeability with respect to the general principles of responsibility.

Edoardo Pellegrino - Decontamination of the polluted site between spontaneous activation of the non-polluting owner and polluting subject’s “pure causality” liability (note to judgement Cass. civ., sez. III, 22 gennaio 2019, n. 1573)

SOMMARIO:

1. The case. - 2. Preamble: regulatory and judicial framework and guiding principles of the subject. - 2.1. Jurisdiction on the verification of the person responsible. - 3. Polluant liability model: “liability for pure causality”. - 3.1. First corollary: compensation in the event of voluntary decontamination and compensation in the eventi of an “ex officio” intervention by the public administration. - 3.2. Second corollary: passive solidarity. - 3.3. Strict liability. - 3.4. – Critical remarks.

1. The case.

The Supreme Court, with its recent pronouncement[1], gave an interesting interpretation of the question regarding voluntary decontamination of polluted locations by a non-polluting owner.  In particular, the judges deal with the issue by analyzing all the civil aspects of greater importance, especially dwelling on the nature of the responsibility of the polluting owner.  Another particularly interesting aspect of the pronouncement pertains to the different legal consequences, also referring the lawsuit that can be brought against the person responsible for the pollution. This implicates the voluntary decontamination by the non-polluting owner, compared with the case in which the latter arises from an administrative act, with which the public authority communicates the unofficial activation of the process aimed at decontamination.  In this case, Alfa company acquired a site from Beta company, which had acquired it from Gamma company. Once the pollution of the subsoil had been noticed, the Alfa company voluntarily reclaimed the land, in accordance with articles 239 of the d.lgs. 152/2006 (environmental “T.U.”). The company then sued the Gamma company, asking for the refunding of all the costs incurred for the decontamination, pursuant to article 253 c.4 d. lgs. 152/2006 or, alternatively, to article 2043 c.c., on the basis of the existence of a bond of solidarity between the two companies justifying the claim for the refunding of all the incurred costs. The judge of the first instance and the appellate judge verified the responsibility of the Gamma company, since it was in possession of the site in the period between 1976 and 2007 and conducted a business on the site of washing and maintenance of public means of transport. The judges concluded that the company was to be held responsible for having omitted to the precautions necessary to avoid pollution. With this last pronouncement, however, the judge denied the existence of the bond of solidarity and sentenced the Gamma company to refund two-thirds of the decontamination costs. Consequently, the Alfa company lodged an “appeal in Cassation” against the judgement of the court of the second instance, whilst the Gamma company submitted a cross-appeal and a defence. The latter claimed the existence of the bond of solidarity and the former contested that the other company could bring an action according to article 253 “T.U. ambientale” and questioned [continua ..]

2. Preamble: regulatory and judicial framework and guiding principles of the subject.

The subject of environmental protection is particularly delicate, as can be seen from the specific legislation both supernational and national, and as proven from the fact that this legislation concerns civil, administrative and criminal aspects. The decontamination of polluted sites, from a phenomenal point of view, is a particular exemplary case compared to those of real environmental damage, since in the first case a damaging occurrence has not happened yet, but there is a concrete risk that it may happen.  In general, the legislation that regulates environmental question is guided by four fundamental principles[1], that are contained in article 191 T.F.E.U., and transposed to the Italian T. U. environmental. The first two principles concern caution[2] and prevention; these may seem overlapping but are to be considered different. With the first one, we refer to the management of unsure risks, the second one refers to actual risks[3]. Essentially, it the caution principle entails the obligation to act in order to avoid potential risks, the prevention principle concerns the management of real and concrete risks. The third principle is about correcting environmental damages right from the beginning. The fourth principle, which is fundamental for our analysis, is the so called “if you pollute, you pay” principle[4]. These principles are provided by European le and by Italian law, specifically by article 3 ter d.lgs. 3rd April 2006 n. 152, that provides that “the protection of the environment and of natural ecosystems (…) has to be assured by all public and private authorities and by natural and legal persons – public or private – through an appropriate action which is inspired by the rules of precaution, of preventive action and also by the ‘if you pollute, you pay’ principle”. The “if you pollute, you pay” principle is also stated by the specific framework that regulates the decontamination procedure and the securing of the polluted site, given by “titolo V parte IV T.U. ambientale”, in particular by article 239. Moreover, for what concerns the peculiar obligations of prevention measures, of securing and decontamination, article 242 of the T.U. environmental states that these obligations are on who altered or compromised the environment. The problem arises when environmental pollution emerges, but the polluting person is not the land-owner. As national[5] and [continua ..]

2.1. Jurisdiction on the verification of the person responsible.

After these necessary premises, it is now possible to examine in depth the pronouncement. The jurisdiction to identify the person responsible for the pollution is a crucial question analyzed in the verdict. In particular, the party that submitted the cross-appeal in Cassation claims that verification of the person responsible, pursuant to article 245 c.2, and start of decontamination procedures by public administration are indefectible requirements to have the right of recourse stated in article 253. Essentially, according to this party, in the event of voluntary decontamination by the non-responsible person, there would be no right to recourse pursuant to article 245 c.2, last sentence. Otherwise, the regulations would clash with articles 3 and 23 Constitution, since it would involve a monetary obligation with no reasonably definite requirements. The conclusion is that the exclusive jurisdiction in the identification of the person responsible is up to the public administration, and that the ordinary judge has no jurisdiction. The judges reject this opinion, declaring that the right of recourse could appear just in the event of voluntary decontamination (about this question, vide infra) and that a necessary and sufficient condition for it is not the identification of the person responsible by public administration, but the undergoing of the intervention of the owner to the procedure stated by the law. The Court of Cassation states that, according to article 245 c.2 last period, the non-responsible owner could intervene and decontaminate at any moment and, then, whether the person responsible has been identified by the public administration or not. Consequently, since the right of recourse is connected to the voluntary decontamination, it is not necessary to wait for the identification of the person responsible by public authority in order to bring that action  The Court also states that in the event of voluntary decontamination the identification of the person responsible is up to the ordinary judge and that the potential identification by the public authority is not significant in court, but just under probatory point of view. The judges conclude in these terms also discussing a contrario in relation to article 7 c.1, d. lgs. 19th January 2017 n. 3, which foresees, in relation to damage compensation caused by violation of the competition law, according to which infringement of right is believed to be permanently verified once the antitrust [continua ..]

3. Polluant liability model: “liability for pure causality”.

In analysing the characteristic features of the pollutant's liability pursuant to art. 253 c. 4 T.U. environmental, the Supreme Court seems to recognize a new model of responsibility. In particular, the Court affirms that there is an obligation ex lege arising from a liability "of pure causality"[1], in which all that is relevant is the material connection between the fact of the pollution and the conduct of the subject who caused the event. The Court specifies that causality has to be understood only in the material sense[2] stated in Articles 40-41 of the criminal code and not also in the legal one pursuant to art. 1223 of the Italian Civil Code: this exclusion implies that when the law refers to "damage", it does so exclusively with reference to the "damage event" and not also with reference to the concept of "damage consequence". Therefore, when the law speaks of "greater damage", it does not refer to loss of profit but to other items of expenditure that are directly attributable to the reclamation, even if they are not an integral part of the related expenditure. What the law provides, as the Supreme Court clarifies, is an indemnity logic, rather than compensation. The result that the law wants to achieve is that of blaming the negative externalities with the pollution exclusively on the polluting person, without blaming them on the administration or on the non-polluting owner: it is the manifestation of the "if you pollute, you pay" principle. Moving on to the structure of the liability in question, as mentioned, the Supreme Court considers it a liability of "pure causality", distinguishing it from objective liability. In particular, this last form of responsibility would be characterized by the existence, in addition to the necessary causal link, also by the element of the person’s "position", or its relationship with the res that materially triggers the causal course that leads to the verification of the damage event. However, this differentiation does not seem convincing, since, as it will be seen below, the two forms of responsibility do not seem distinguishable, since both have, as their fulcrum, an etiological link, which is the only true element on which both the objective responsibility and the pure causality are based on.   [1] There are two different approaches to ascertaining the causal link in this matter. According to a first, endorsed by T.A.R. Emilia-Romagna Bologna, 15 febbraio 2017, n. 125, the notion of cause [continua ..]

3.1. First corollary: compensation in the event of voluntary decontamination and compensation in the eventi of an “ex officio” intervention by the public administration.

Apart from the critical observations set out and summarized above, what is obvious is that the responsibility of the pollutant does not fall within the scope of art. 2043 of the Italian Civil Code, as long as the non-responsible party spontaneously decontaminates the polluted site. The first corollary of the nature of the liability identified by the Court involves the issue of recourse pursuant to art. 253 c. 4 “T.U. ambientale”[1]. In this case, as pointed out by the Supreme Court, an obligation ex lege arises, with an indemnity and non-compensatory content, on the polluting person, who will have, therefore, to refund the expenses incurred by the person that decontaminates. There are two constituent elements of this obligation: voluntary execution of the remediation by the owner of the site and compliance with the procedures provided by the T.U. The case in question therefore falls within the scope of legal obligations that do not derive from an unlawful fact: consequently, it will be subjected to the ten-year limitation period rule. On the other hand, in the event that the owner of the site does not take action to carry out the remediation voluntarily, according to the provisions of art. 250 T. U. environmental, the public administration will carry out the remediation. This eventuality entails, by law, that the public body, if it cannot identify the person responsible for the pollution or cannot exercise recourse against the polluting person, will exercise the privilege against the owner of the site. After the refunding of the expenses by the owner towards the public administration, the former will not be able to benefit from the compensation provided by art. 253 T.U. environmental, which, as peremptorily stated by the Court, is provided for by law only in the case of spontaneous remediation by the owner who is not responsible for the pollution. As stated by the Ermellini, in fact, the indemnity logic underlying the compensation is unrelated to the case in which the property loss of the owner of the site is caused by an offense. Consequently, in order for the expenses incurred to reimburse the Public Administration to be refunded, the owner of the site will have to bring an action against the polluting party, pursuant to art. 2043. This obiously entails the re-emergence of the discipline of the obligation from an illegal act. In particular, the rule of limitations will be five years, the burden of proof on the plaintiff will be more [continua ..]

3.2. Second corollary: passive solidarity.

The second corollary that derives from the statute of liability of the pollutant concerns the rule of solidarity pursuant to art. 2055 of the Civil Code, which the Court refuses to apply to the present case. In particular, as a basis for this decision, there would be no art. 311 c. 3[1] of the T.U. environmental, as well as the application of general principles in civil matters. In fact, art. 311 c. 3 concerns another case, namely the one of environmental damage which, as seen, occurs logically later than the one at issue. Otherwise, the denial of the solidarity rule derives from the nature of the responsibility which, as mentioned, is not a reimbursement, but a compensation, to the extent that it falls within the obligations ex lege from a lawful fact. This conclusion, although it passes through the questionable exclusion of the compensatory nature of the recourse action[2], is consistent with the general principles on subjectively complex obligations, according to which an obligation is partial when multiple absolutely independent securities converge between them, applying, on the other hand, art. 2055 of the Italian Civil Code if the title is the same. In the present case, in fact, the conducts of the polluting person and of the owner of the site cannot be traced back to units, maintaining their own autonomy that is as logical as it is factual[3].   [1] Which reads verbatim in the last sentence: "In cases of concurrence in the same event of damage, each is liable within the limits of their personal responsibility". [2] V. Corriero, Diritto di rivalsa e obbligazioni parziarie risarcitorie nel sistema italo-europeo di responsabilità ambientale, cit; U. Salanitro, Bonifica ambientale e azione di rivalsa, cit., who points out that it is not in fact understood how the rejection of the local rule on the subject of wrongdoing would have prevented the application of solidarity, which would in any case derive from the general discipline of obligations. [3] See, on this point, M. Orlandi, Concorso nel danno ambientale e teoria dell’equivalenza, in I.A. Nicotra e U. Salanitro (a cura di), Il danno ambientale tra prevenzione e riparazione, Giappichelli, 2010, 141.

3.3. Strict liability.

In order to better understand the legal nature of “pollution liability”, it appears preferable, first of all, to outline the essential features of objective liability, in order to assess the validity of the distinction made by the Supreme Court. According to most of the doctrine[1], indeed, the only unfailing element of objective responsibility would be the one of the causal link, an objective element par excellence of the civil offense. In fact, it is possible to reach this conclusion by reviewing some cases that the doctrine places under this form of responsibility. Analysing articles 2051 of the Italian Civil Code (Damage caused by things in custody)[2] and 2052 c.c. (Damage caused by animals)[3] we can see how these forms of responsibility are characterized not only by the centrality of the causal link, but also by the enhancement of the relationship between the responsible party and the "thing in custody" (art. 2051 cc) or the animal (art.2052 cc). However, this assumption cannot lead, sic et simpliciter, to the conclusion that such relationships are among the essential elements of strict liability. In fact, by analysing what the liberating evidence that can be experienced by the injuring party in these cases is, in both cases it takes the form of the demonstration of fortuitous events, of force majeure, of the fact of the third party or of the fact of the injured party. Well, these four eventualities essentially translate into the interruption of the causal link between damaged person and damaged res. Furthermore, analysing art. 2050 cc, another case that the doctrine, now prevalent[4], identifies as a hypothesis of objective responsibility, it can be noted that there is no difference between the responsible person and the quid which triggers the causal course that leads to the verification of the damage; this case is then characterised by the type of activity conducted by the person, and not by the type of the "person" himself (thing in custody or animal). According to the jurisprudence, in some of the typical cases of strict liability (liability for things in custody[5], for damage caused by animals[6] or for the ruin of a building[7]) the analysis of the position (owner of the res or of the animal) is aimed at ascribing liability to a legal entity liable to civil liability. In these cases, technically, the causal course is triggered by an element that can never be considered responsible (the res or the animal), and that [continua ..]

3.4. – Critical remarks.