The Approach to Historical Pollution in France: Remedy, Compensate, and Punish

Abstract

Although never addressed per se, historical pollution is tackled in the French legal system by the national “Contaminated Land Regime”. Environmental law is the masterpiece of this system: industrial facilities are operated under the control of the administrative authority that may at any moment impose and enforce clean-up procedures for soil, water, and waste pollution. Under the regulatory regime, the last operator of a contaminated site is generally liable for the remediation of historical pollution. Liability under the regulatory regime shapes liability under Private and Criminal law. On the one hand, the last operator of an industrial site may be liable for losses and damages caused to third parties by historical contamination: in this case, the last operator may not oppose any defence to third parties, but is entitled to bring a civil claim against the previous operator who did not disclose the historical pollution of the site. On the other hand, the last operator who fails to comply with legislative or administrative prescriptions may be also liable under criminal law. Moreover, when historical pollution causes risks for or damage to the environment or human health, misdemeanours may also apply alongside environmental offences and offences against persons. In the French legal system, the assignment of liability for historical pollution is thus as effective as the risk of vicarious liability is high.