The ECtHR judgment in the Italian waste dumping case is likely to open up new avenues for claimants seeking to put pressure on governments and the private sector. With insight from Cat Greenwood-Smith at Freshfields in London.
The European Court of Human Rights (ECtHR) handed down a judgment in Cannavacciuolo and Others v. Italy on 31 January, declaring that failures by the Italian state to deal effectively with illegal waste dumping and incineration over a period of many years were a violation of Article 2 – the right to life – of the European Convention on Human Rights (ECHR).
ClientEarth, which had supplied information in the case, called it “a seismic ruling”, declaring that the decision “should have ramifications for existing and prospective cases all over Europe.”
The judgment has implications for the ways in which governments in Europe identify, monitor and mitigate the hazards of dangerous pollutants – and the ways in which litigants may frame pollution alongside climate change in future.
Cat Greenwood-Smith, partner in Freshfields’s dispute resolution practice in London, considered the likely ramifications of the judgment.
“Historically, claims relating to climate change have been brought against governments seeking to force a strategic change either in relation to a specific project or investment, or in respect of transition planning more broadly,” she said. “A good example of that type of claim is the Urgenda decision in the Netherlands in 2019, where the Dutch court recognised that the Dutch government’s human rights obligations to its citizens required it to reduce emissions.”
In Urgenda Foundation v State of the Netherlands in 2019, the Dutch Supreme Court upheld the previous decisions in the Urgenda climate case, finding that the Dutch government is obligated to urgently and significantly reduce greenhouse gas emissions in line with its human rights obligations. The case is widely viewed as the catalyst for claims against governments and companies across Europe.
“Those claims are still being brought,” Greenwood-Smith continued, “as we see with the recent Cannavacciuolo judgment. But we are also seeing a growing shift, often building on the basis of those claims against governments, towards claims being brought against private companies. I expect we will see claimants look to build on the foundations laid by the Cannavacciuolo judgment to bring claims against private companies.”
Illegal waste dumping and burning had been carried out by organised criminal groups in the region of Campania – the so-called ‘Terra dei Fuochi’ (Land of Fires) – for decades, causing contaminants in the groundwater and an increase in serious illnesses among the local population, including cancer.
The Italian government attempted to cast doubt on the existence of a proven causal link between the polluting activity and the harm suffered by the applicants – 41 local residents. The government argued that it could not be presumed but should be conclusively proven by clear scientific evidence.
The court disagreed, however. “There can be no doubt that the illegal and therefore completely unregulated dumping, often accompanied by incineration, and burying of hazardous waste in issue in the present case are inherently dangerous activities which may pose a risk to human life,” it said.
The court said that in the context of the case, it considers that the authorities were “first and foremost, under a duty to undertake a comprehensive assessment of the pollution phenomenon at issue, namely by identifying the affected areas and the nature and extent of the contamination in question, and then to take action in order to manage any risk revealed.”
It continued: “They were further expected to investigate the impact of this pollution phenomenon on the health of individuals living in areas affected by it. At the same time, the authorities could have reasonably been expected to take action to combat the conduct giving rise to the pollution phenomenon, namely the illegal dumping, burying and incineration of waste. The authorities were further under an obligation to provide individuals living in areas affected by the pollution phenomenon with timely information enabling them to assess risks to their health and lives.”
Greenwood-Smith noted that the judgment reflects broader trends in how claimants are framing their claims around the world, in particular through greater reliance on the link between climate change and human rights.
But the specific nature of the pollutants and the harm they created in Cannavacciuolo means that claimants cannot rely on a blanket ruling that all pollutants constitute a potential breach of Article 2.
“The court considered a number of factors including immediacy and seriousness of the harm, how systemic the failure to act was, the effectiveness of the legal framework for enforcement and governance policies, the provision of information, and the scale and duration of the issue,” said Greenwood-Smith. “These are points which necessarily mean each case must turn on its specific facts.”
In a concurring opinion in Cannavacciuolo, Judge Krenc considered the court’s approach to the locus standi of associations in environmental cases. He noted that the court relies on its traditional case-law to the effect that an association can only have standing before the court if it is able to show that it was directly affected by the measure complained of – although this was “eased” in Verein KlimaSeniorinnen Schweiz – the so-called ‘Swiss Grannies’ case.
He said: “The present judgment confirms, however, that this easing of the case-law is limited to the very specific context of climate change and cannot be extended to other forms of environmental harm.”
“Nonetheless,” he continued, “I must confess to a certain bewilderment. Although climate change undoubtedly raises specific and unprecedented questions, is it not artificial to draw such a clear-cut distinction between climate-related issues, on the one hand, and the environment, on the other? In both cases, it is the right to a healthy environment that is at stake. In my humble view, all forms of environmental harm, whether they are local, transnational or global, deserve equal attention as to their impact on the effective enjoyment of the rights set out in the Convention for the persons concerned.”
Greenwood-Smith said: “Judge Krenc made this statement in the context of expressing his concern over the court’s restrictive stance on the standing of associations in environmental cases. He questioned whether climate change and environmental damage are truly distinct enough to justify the discrepancy of the court taking a relaxed approach to standing in climate change cases but maintaining a stricter position on other cases of environmental harm.”
She concluded: “His opinion carries persuasive weight. It may influence future case law and academic and policy discussions, but it has no binding effect and should be understood in the context in which it was made.”