Should the polluter pay?

07 Mar 2019

Yes, is the resounding answer. This is why environmental charities are calling for this principle to be embedded in Scots law, alongside other important environmental law principles.

What is the polluter pays principle?

It is only logical that those who produce pollution should bear the costs of managing it.  This helps prevent damage to human health and the environment.

The principle of polluter pays is so well-accepted that it has been part of the international environmental debate for over 55 years. It has featured in EU law for over 30 years. But it is still relevant today, and therefore included in the Draft Global Pact for the Environment, presented to the United Nations in September 2017.

The polluter pays principle in Scotland

EU Treaties specify that EU environmental law will be developed in line with a set of environmental principles, including the polluter pays principle.

This has meant that in Scotland, courts, businesses and governments can apply the polluter pays principle in their decision-making. It has formed an essential component of environmental law and underpins most of the regulation of pollution affecting land, water and air. In 2017, Environment Secretary Roseanna Cunningham stated that “the four EU principles of precaution, prevention, pollution at source and ‘polluter pays’… are essential to maintaining Scotland’s environmental achievements”.

Some of our most progressive policies, such as the introduction of a deposit return scheme, are based on the polluter pays principle. A deposit return scheme embodies this principle as it makes the producer pay costs related with a product’s end of life, such as littering.

What does Brexit mean?

Given how important this principle is, you might be forgiven for thinking that regardless of Brexit, this will not change.

Unfortunately, that is not the case.

Upon EU exit, we will lose the overarching framework for policy-development provided by the EU and underpinned by these principles. Even more worryingly, in that scenario we will have nothing similar to fall back to. Scotland, in contrast to countries such as Wales, France or Switzerland, has not embeded environmental principles in domestic law.

The loss of these principles has implications for policy-making but also in terms of how we interpret and enforce legislation. For example, so far Scottish Courts have been able to refer to EU principles in their rulings. In 2013, the Court of Session applied the polluter pays principle in an open cast coal ruling. This meant that the liquidators of Scottish Coal had to ensure no further environmental damage occurred. It also ensured that the costs were not passed on to Local Authorities or Scottish Government.

Environmental principles, such as the polluter pays principle, must continue to form the basis of Scotland’s environment policy. To do that they need to be legally binding. In other words, we need Scottish Government to embed these principles in domestic law.

Read more about the EU’s four environmental principles.

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