The polluter pays principle as part of a normative framework for a sustainable water management

1. The polluter pays principle as part of a normative framework for a sustainable water management Utrecht Centre for Water, Oceans and Sustainability Law Conference: Water and Ocean Law in times of Climate Change Utrecht 31 October/1 November 2013 Berthy van den Broek [G.M.vandenBroek@uu.nl] Petra E. Lindhout [P.E.Lindhout@uu.nl]

2. Content • Genesis and development of the polluter pays principle • Interpreting the polluter pays principle • Relevant European Case law • Two examples

3. Genesis & Development at the OECD The scope of application of the polluter pays principle has increased during the years;

4. Polluter pays principle in EU Law • EAP 1973: introduction of the PPP • PPP is meant to be an incentive to reduce pollution and use less polluting techniques • 1986: Introduction in primary EU Law in the Single European Act (Article 130 r(2)) • EAP 1992: link to sustainable development • EAP 2002: principles as a basis for policy making • 2007: Lisbon Treaty: Integration of environmental protection requirements must take place ‘with a view to promoting sustainable development’

5. Interpreting the polluter pays principle • Economic interpretation: internalization of environmental costs • Strict: excluding liability payments and green taxes • Broad: including liability payments and green taxes • Equityinterpretation: fair distribution of the costs • Don’t pass the billtoothers • Don’t pass the billtofuturegenerations

6. European Case Law Standley: PPP reflects principle of proportionality C-293/97 Pontina Ambiente: a non-polluter or one not contributing to C-172/08 (the risk of) pollution may not be burdened ERG & others: use presumptions in determining causation C‑378/08 between certain activities and pollution/environmental damage Futura Immobiliare: differentiation in contributions of C-254/08 categories of polluters is allowable, unless the costs are manifestly disproportionate in relation to pollution capacity

7. Example I guidelines for burden-sharing in cases of multiple source pollution • In cases of multiple source pollution the PPP requires a fair distribution of burdens • A programme of measures should address all sources of pollution : all polluters should contribute to the abatement of the pollution • Polluters can only be obliged to contribute to the abatement of pollution in proportion to their contribution to the aggregate problem

8. Example II: cost recovery for water services Article 9 (1) WFD Recovery of costs for water services: 1. Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle. Member States shall ensure by 2010: - that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of this Directive, • an adequate contribution of the different water uses, disaggregated into at least industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle. Member States may in so doing have regard to the social, environmental and economic effects of the recovery as well as the geographic and climatic conditions of the region or regions affected.

9. Example II: cost recovery for water services Does the polluterpaysprinciplerestrict MS in / affectsapplication of cost recovery for water services? • Fundamentalenvironmentalprinciple • Explicitlymentionedtwice in the provision: • In general/overall application of cost recovery • Specificallywithregardto the user groupscontributionto the costs of water services • Markers providedby ECJ Case Law

10. The polluter pays principle as part of a normative framework for a sustainable water management • Discussion: It is not justifiable to let concerns of affordability prevail over the idea that the polluter should pay. • Paper of this presentation is forthcoming; • For further levelling or discussion, please contact us: • G.M.vandenBroek@uu.nl • P.E.Lindhout@uu.nl