In the pursuit of environmental protection, States have recently redefined the principles of environmental protection, including, among other measures, the ‘polluter pays’ principle – a principle that assigns liability to the polluter. It, however, requires to prepare environmental impact assessment for activities that may have a significant harmful transboundary effect.
These principles are in the Global Pact for the Environment, emanating from intergovernmental and civil society efforts to improve environmental protection and management, most recently the Paris Agreement on climate change and the UN Sustainable Development Goals. United Nations-led initiatives contributed, inter alia, the Rio Principles, agreed during the 1992 Earth Summit on Environmental and Development. Civil society’s significant contributions include the International Union for Conservation of Nature (IUCN) ‘Draft International Covenant on Environment and Development’.
The purpose of Global Pact for the Environment is to cluster in a single document with legal force the major principles that guide environmental actions. Given its importance, most states would likely seek to integrate the principles into domestic law.
This column seeks to single out polluter pays principle. The ‘Polluter Pays’ principle was originally enunciated by the Organisation for Economic Cooperation and Development (OECD) to restrain national public authorities from subsidising the pollution control costs of private firms. Instead, enterprises should internalise the environmental externalities by bearing the costs of controlling their pollution to the extent required by law.
The principle is therefore a method for internalising externalities. Those who benefit from air made cleaner have a positive externality if they do not pay for the clean-up. Where air is fouled by a producer who bears no cost, it is a negative externality; those who buy the product also are free riders if the fouling is not reflected in the price of the goods. Internalisation requires that all the environmental costs be borne by the producer or consumer instead of the community as a whole. Prices will reflect the full cost if regulatory standards or taxes on the production or product correspond to the true cost of environmental protection and damage.
Historically, however, pollution control costs have been borne by the community at large, rather than the polluters. Subsequently, it was realised that the obligation should be borne by a polluter, because it creates a sense of obligation to the protection of the environment. Since then, it became a universally recognised principle that has been integrated in legal and policy frameworks for environmental safeguard.
It is in this context that Rwanda, equally, has domesticated in the polluter pays principle in the law. For example, Article 7, paragraph 3, of Organic Law No. 04/2005 of 08/04/2005 determining the modalities of protection, conservation and promotion of environment in Rwanda, provides that: ‘Every person who demonstrates behaviour or activities that cause or may cause adverse effects on environment is punished or is ordered to make restitution. He or she is also ordered to rehabilitate it where possible.’
The provision places the legal liability on the polluter for not perhaps doing enough to minimise the pollution to environment. Legal liability is one way of forcing major polluters to repair the damage that they have caused, to pay for those repairs or to compensate someone for the damages if the damage is irredeemable. Liability can be seen as a mechanism for implementing environmentally friendly strategies.
Undoubtedly, this would ensure the prevention, mitigation and remediation costs for pollution, and other environmental disruptions and degradation are, to the greatest possible extent, borne by their polluter. Once environmental damage occurs, necessary measures must be taken to ensure that adequate remediation of environmental harm is achieved.
In this regard, most recently, a Ministerial order n° 001/2018 of 25/04/2018 determining the list of works, activities and projects subject to an environmental impact assessment was adopted. It provides a long list of such activities, including those that have partial environmental harm. That said, any commencement of such activities without being issued an environmental impact assessment certificate by Rwanda Development Board, punitive measures are obviously imposed in accordance with the Penal Code.
This is an important mechanism to compel polluters to ensure that their activities do not cause damage to the environment. They must try as practically as possible to minimize the environmental harm. The principle doesn’t only apply to an individual but also to the State. Therefore, an environmental impact assessment prior to any decision made to authorise or engage in a project, an activity, a plan, or a programme that is likely to have a significant adverse impact on the environment has been widely seen as one of the best approaches to deter environmental harm. So, liability regimes for environmental harm, therefore, serve different purposes: as economic instruments that provide incentives to comply with environmental obligations and to avoid damage; as means of penalising wrongful conduct; and they deter environmentally harmful conduct and prevent environmental damage by encouraging the party responsible for activities that may have an adverse impact on the environment to exercise caution to avoid the harm.
Let the golden rule for all us be the duty to take care of the environment. To this end, we will all enjoy the clean environment.
The writer is a law expert.
The views expressed in this article are of the author.