What is environmental damage?
According to the Environmental Damage Act, environmental damage is loss caused by activities carried out in a certain area and resulting from:
- pollution of the water, air, or soil;
- noise, vibration, radiation, light, heat, or smell; or
- another, similar nuisance.
The keeper of a road, railway, port, airport, or comparable traffic area is also considered to be carrying out activities referred to above. The Environmental Damage Act does not apply to contractual liability for compensation.
Activities and persons carrying out activities
The concept of activity as referred to in the Environmental Damage Act is a broad one, since it applies to commercial, industrial, agricultural, and forestry activities as well as public utility services, among other things. The concept also covers the keeping of oil storage tanks and the storage of materials and substances. Thus, the concept of activity does not necessarily mean a continuous activity but may, rather, be comparable to the mere possession of property.
‘Person carrying out activities’ has not been defined in the Environmental Damage Act. However, the term usually refers to the legal person responsible for the activity falling within the scope of the Environmental Damage Act in a certain area, such as a business enterprise, public corporation, or private person.
The person carrying out activities has strict liability
According to the Environmental Damage Act, the person whose activity has caused the environmental damage is liable to compensate for such damage, as is a person comparable to same in terms of his competence, his financial relationship with the person carrying out the activity, and the profit he seeks from the activity.
Liability for compensation under the Environmental Damage Act arises even if the damage has not been caused deliberately or negligently. Because this is strict liability, the fact that the damage is shown to have resulted from carrying out the activities suffices for liability for compensation to be shown.
In practice, the liability of the person carrying out activities is similar to vicarious liability. Therefore, as a general rule, the person carrying out activities is also liable for the activities of third parties carrying out repair, maintenance, or similar activities in an independent position in the place in question.
Liability for loss or damage unrelated to the activities
Regardless of the principal rule stated above, the person carrying out activities does not necessarily have liability for the consequences of actions that are carried out in the area of operation without his permission or with intent to cause damage.
The government bill concerning environmental damage states that if an outsider intrudes into the place where activities are carried out and maliciously causes an accident that in turn causes environmental damage, this does not constitute damage arising from carrying out the activities. Thus the person carrying out activities is not liable for damage caused, for example, in the theft of oil, unless said person has contributed to the occurrence of the damage. The person carrying out activities may be released from strict liability in cases in which the malicious or negligent actions of another person are, with respect to their environmental effects, unrelated to the first person’s activities.
If the damage has occurred in the area of operation of the person carrying out activities, he probably bears the burden of proof that the damage is unrelated to his activities.
Grounds for release from liability in practice
In the case of maliciously caused damage, the person carrying out activities may be released from his liability for compensation if he has not contributed to the occurrence of the damage. The preparatory work for the Environmental Damage Act contains no examples of such contribution but, for example, the Finnish Oil Pollution Compensation Fund has set forth certain preconditions on the basis of which the person carrying out activities may be exempted from strict liability for maliciously caused environmental damage. For example, in cases of environmental damage caused in the theft of oil, the Oil Pollution Compensation Fund has found that the person carrying out activities can be released from liability only if the oil tank has been locked, a tank situated in a public place has been fenced if possible, and the tank is duly approved and protected by appropriate safety equipment.
Since the liability of the person carrying out activities is strict liability, any deviations from the above mentioned main rule require a high degree of care, regardless of the type of activities conducted.
Tomi Eloluoto
SOURCES:
Erkki J. Hollo & Pekka Vihervuori: Ympäristövahinkolaki, Helsinki 1995.
Government proposal to Parliament for an act on compensation for environmental damage and for acts to amend certain related acts.
Information on the Finnish Oil Pollution Compensation Fund, received from Merja Huhtala, secretary general of the Environmental Protection Department, Ministry of the Environment.
