Strict Environmental Liability and NGO Damages and Enforcement Claims: A Dutch and International Law Perspective

Abstract

The European Commission's 2000 White Paper on Environmental Liability identifies two main functions for civil liability in the context of environmental protection. In addition to compensation for damage to the environment, civil liability is perceived as a tool for the enforcement of EC (public) environmental law. Private actors at the national level are considered to carry out watchdog functions in addition to the Commission at Community level. One way in which non-governmental organisations (NGOs) involved with environmental protection have been recognised by both Dutch and international law is by entitling them to claim the costs of pollution prevention measures. This possibility is included in the definition of compensable loss rather than as a separate remedy explicitly made available to NGOs. Insofar as enforcement actions are concerned, a Dutch case against the State is examined in order to identify the legal issues relevant to successful enforcement actions at national level. This case is an illustration of the role NGOs can play in using civil liability actions in the context of environmental law. Notable here is what form of injunctive relief is available under Dutch law against the State. The possibilities of ordering the State to comply with a duty to implement a directive are considered.