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New Law Introduces Civil Liability For Environmental Damage
[Rachel's Introduction: Malta has adopted a precaution approach to environmental damage, including a duty to prevent harm, and the principle that polluters shall pay.]
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By Raphael Vassallo
A legal notice issued on Monday will hold all private or public entities, including individual citizens, civilly liable for any damage they may wittingly or unwittingly cause to the environment.

The new law, which comes into force on 1 May, will provide the legal basis for the competent authority to sue perpetrators of environmental damage to recover the costs involved in rectifying the damage.

Entitled "The Prevention and Remedying of Environmental Damage Regulations", the legal notice aims at upgrading Malta's definitions of such terms as "natural habitat" and "environmental damage" to bring them in line with European directives.

It also identifies the Malta Environment and Planning Authority [MEPA] as the competent authority responsible for enforcing various aspects of the law.

Among other novel aspects, the regulations envisage "preventive action" in cases where environmental damage has not yet occurred, but is considered "imminent".

A MEPA official explained that these changes are innovative in legal jurisdictions such as Malta, where the notion of civil environmental liability is not ingrained.

"Through these regulations, the competent authority, on behalf the state, is authorised to sue an operator for causing environmental damage, and also for such an operator to take measures to remedy such damage. The regulations also provide for the precautionary approach, in that the primary duty of an operator is to take any action he deems appropriate to avoid such damage, and positive action may be requested from such an operator even if he anticipates the likely occurrence of damage."

Examples of environmental damage listed in the law include: damage to protected species and natural habitats; pollution of water which may affect its ecological, chemical or quantitative status; land contamination creating risk to human health; as well as other damage caused by emissions or pollutants.

The spokesman added that the legal change is likely to prompt individual initiatives from the private sector. "One would also expect the insurance industry to react to these regulations (as they have done in relation to the EU Directive this legislation transposes) and offer products to such operators through which the risk of the operator may be partly covered by insurance policies."

In keeping with the celebrated "polluter pays" principle, the operator "shall bear the costs for the preventive and remedial actions taken pursuant to these regulations"; but these regulations cater for civil, and not criminal liability, so no new penalties are stipulated.

rvassallo@mediatoday.com.mt

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