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Abstract
The great challenge of this century is to figure out how we can achieve development, combat climate change, conserve wildlife, and protect our common resources, in global terms, while maintaining a balance between the environment and social and economic considerations. Environmental liability, conceived by the European Union and the Member States as an instrument of administrative law in substantial and sanctioning terms, is one of the preferred for protecting the environment and ensuring sustainable development. It is a new approach to the environment as an injured party, allowing the repair of pure ecological damage, and ensuring its prevention. Given the particular characteristics of environmental damage, namely the fact that the environment is a collective good and has no geographical limits, environmental liability must focus on a cross-cutting and transnational approach. A European environmental liability regime was adopted and entered into force about 15 years ago. This work aims to assess the current usefulness of that regime and the need for its possible modification, through a comparative and critical analysis of the options took by some of the Member States, particularly Portugal, and the data available in this matter, and suggest aspects in which the regime can be improved.
Keywords: European Union, environment, environmental liability, polluter pays principle, energy, health, safety law.
JEL Classification: K32
1. Introduction
As soon as international society became aware that the protection of the environment was indispensable, unpostponable, and costly, the idea that environmental damage should be compensated by those who caused it began to take shape. In a first phase, environmental damage was that which resulted from the damage to environmental components and reflected on the health, life, and property of people, so that the recourse to civil liability seemed adequate and sufficient. Although such damages were remedied, the environment itself remained damaged unless the States endeavoured to repair it, which would have to be done at the expense of the State budget and taxpayers' taxes. The autonomation of the concept of environmental damage as pure ecological damage highlighted the urgency of a regime of environmental liability that would ensure not only the repair but also, and above all, the prevention of environmental damage. This regime found its legal basis in the polluter-pays principle, as well as in...