No. 16




Environmental Liability in Light of the Environmental Liability Act

19 December 2007


RiTo No. 16, 2007

  • Evelin Lopman

    adviser to the Chancellor of Justice

  • Triin Nymann

    lawyer, Legal Department of the Ministry of the Environment

The Riigikogu passed the Environmental Liability Act. The Act does not regulate all liability for environmental matters or compensation of all damage done to the entire environment. This article deals with the so-called borderline areas of the Act: what sort of liability the legislation governs and what kind it does not, what is covered by the definition of environmental damage, and why a certain part of the environment was omitted from the Act.

The state can be viewed as the representative of society and the expression of the collective interest, and as a result has the right to demand damages from a person causing damage to the environment per se.

Damaged environment is viewed as an independent integral whole which has become damaged, and which the person perpetrating the damage must compensate; but it also covers damage in the form of a reduction in the quality or quantity of the benefits and values offered by environment to society. In the event of damage to the environment, an attempt is made to reinstate the situation predating the damage, similarly to the case of compensation of any other damage. The objective is to achieve a situation identical or equivalent to that which preceded the damage (or as close to it as possible) – without payment of monetary compensation. The party which perpetrated the damage must restore the state of the environment to the original situation – in actuality, not merely notionally, as would be entailed by the payment of a monetary compensation.

For the purposes of the environmental damages directive, four environmental components are covered: protected species, protected natural habitat types, water and soil. Marine waters are thus excluded from the purview of environmental liability (except for coastal waters, generally 1 nautical mile from the coast), ambient air, including noise and radiation, species of birds and animals not under protection, landscapes and recreational areas.

In addition to species protected on a European level, the Environmental Liability Act covers species which are rare and valued in Estonia – the species under conservation in accordance with the Nature Conservation Act. According to the legislation, conservation areas and special conservation areas established on the basis of domestic legal acts, species protection sites and individual natural sites (protected zones) are included under environmental liability. If damage occurs to protected species and habitats, an important stipulation of the Environmental Liability Act is that the case must involve a significant unfavourable impact, which the Nature Conservation Act classifies as an influence which jeopardizes achieving or maintaining a favourable status for a species or habitat. Just as in the case of species and habitats, damage to waters also has an applicable threshold, beyond which damage is considered to be significant and becomes subject to the Environmental Liability Act. This threshold is a worsening in the water class which is determined by the water´s qualitative (including ecological, chemical and physical) and quantitative indicators.

Full article in Estonian