Health damage caused as a result of adverse environmental impacts: civil compensation mechanisms

Kolesnichenko Ol'ga Viktorovna ORCID: 0000-0003-3645-2861 PhD in Law Associate Professor at Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot, Associate Professor at Tyumen State University 390043, Russia, Ryazan, 1st Krasnaya str., 18, room 508 olja_korn@mail.ru Other publications by this author

The current special legislation (Article 79 of Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection", hereinafter also the Law on Environmental Protection), formulating the rules for compensation for damage caused to the health of citizens as a result of adverse environmental effects, does not specify in any way the specifics of the conditions for the occurrence of tort obligations of this kind, limited to indicating the obligation to make the necessary compensation "in full". At the same time, a special characteristic of health damage in environmental relations is its ecogenicity, expressed in its origin from environmentally determined factors, but not the most transformative and (or) economic activities of individuals and organizations ^{[1, p. 18; 2, p. 261; 3, p. 20]}.

This characteristic, from a formal point of view, does not prevent the application of the general norms of Art. 1064 of the Civil Code of the Russian Federation on compensation for harm, as well as the rules for determining the amount of legally significant harm to health contained in § 2 of Chapter 59 of the Civil Code of the Russian Federation - of course, provided that the fact of committing a civil offense entailing a disease or other disorder of the health of citizens is established. At the same time, in the absence of special standards (evidentiary presumptions) of the presence of a causal relationship between deterioration of health and environmental offenses, methods for assessing ecogenic harm to health, only the norms of social legislation on guarantees and compensation for victims of man-made accidents and other incidents with adverse environmental consequences remain in real demand in practice. The consistently high level of requirements for the implementation of social guarantees in connection with violations of environmental legislation (the number of cases in this category for 2013-2023, according to the Judicial and Regulatory Acts of the Russian Federation platform, is comparable to 32% of the total number of cases for compensation for harm to health) allows us to raise the question of the need to extend civil compensation mechanisms to such relations. In general, the above confirms the relevance of attempts to identify theoretical and legal prerequisites for modifying the design of tort liability, taking into account the specifics of the harm caused and the illegal behavior that causes it, the development of other (alternative tort liability) civil remedies in the environmental sphere.

It is noteworthy that the doctrinal sources currently use the term "property" more often, but not "civil law" liability for adverse environmental effects ^{[4, p. 97; 5, p. 25; 6, p. 145; 7, p. 37]}. It seems that such an approach is intended to eliminate the implementation with its help of the public interest expressed in the conservation of natural resources, ensuring compliance with environmental requirements ^{[8, p. 32; 9, p. 53]}. It is very significant that addressing the problem of environmental (ecogenic, environmentally caused, etc.) harm in civil law somehow emphasizes the secondary importance of the protected interest of individuals in relation to the public interest expressed in ensuring the preservation of the natural environment ^{[10, p. 1931]}. The scope of application of the institute of civil liability is proposed to be determined by isolating from the scope of "public harm" specific losses of the nature user (private person) resulting from adverse environmental impacts ^{[11, p. 1202]}. The criteria for assessing moral and physical suffering inflicted on citizens against the background of such an impact are relatively elaborated in the doctrine of civil law ^{[12, p. 813; 13, p. 7; 14, p. 148]}. It should be assumed that in reality we are talking about the existence of a mixed liability regime in the environmental sphere, in which special environmental liability and tort liability for the adverse consequences of environmental violations to which individuals (citizens and organizations) are subject are isolated. Establishing the specifics of the order of occurrence and conditions of tort liability for harm to health in this area, it is impossible to ignore the study of the construction of special liability, since its interpretation contains a very specific approach to determining the legal consequences of adverse environmental impacts.  

The above interpretation, upon first reading, allows us to conclude that property liability for environmental damage, followed by tort liability for ecogenic harm to the health of citizens, occur when refutable presumptions of guilt and illegality are applied, the effect of which extends to situations of detection of adverse changes in natural resources or objects of the animal (plant) world in the process of certain economic activity. However, this thesis is refuted by subsequent explanations of the highest court. In particular, paragraph 7 of the Resolution under consideration by the Plenum of the Supreme Court of the Russian Federation directly concerns the definition of a causal relationship, the existence of which is assumed only for situations where an economic entity exceeds the established standards of permissible environmental impact. In turn, paragraph 8 of the document directly concerns the condition of guilt, and in this part, the plaintiff's exemption from the obligation to prove is associated solely with the defendant's status as the owner of a source of increased danger (owners of oil pipelines, radiation-hazardous and nuclear-hazardous industries, etc.).

Meanwhile, when causing harm to health in the environmental sphere, it is difficult not only to establish the fact of an offense, but also to determine the relationship between such a violation and harm of a specific nature and size, since, as is known, the same diseases (bronchial asthma, acute upper and lower respiratory tract infections, coronary heart disease, etc.) can occur from both environmental and other unrelated factors. It is impossible to exclude the origin of health damage from the so-called "accumulated" adverse effects ^{[15, p. 190; 16, p. 48; 17, p. 101]}, expressed not in a specific violation of environmental standards (exceeding permissible emissions, non-use or improper use of wastewater treatment plants, etc.), but in a gradual deterioration of ecosystems, climate, individual natural resources in conditions of regular implementation of certain types of economic activity. Such harm does not lose the quality of reparability, since, by virtue of paragraph 2 of Article 77 of the Law on Environmental Protection, compensation in favor of third parties, firstly, is carried out separately from the application of special environmental liability measures, and, secondly, is not excluded upon receipt of a positive conclusion of the state environmental expertise. The latter suggests that compliance with established environmental impact standards is not an obstacle to the occurrence of a tort indemnification obligation.

At first glance, alternative compensation mechanisms based on loss distribution agreements or parametric insurance contracts are aimed at solving the problem of compensation for victims, in principle without resorting to the institution of tort obligations ^{[18, p. 180; 19, p. 135]}. An illustrative example of the implementation of such mechanisms are the so-called "asbestos schemes", extended to diseases caused by the adverse effects of asbestos, unrelated to the professional activities of the victim ^{[20, p. 15]}. Such schemes are based on the principle of indisputable payments from a specially created fund or an industrial accident insurance fund in favor of persons whose health damage is expressed in a certain disease, with manifestations characteristic of asbestos exposure and the necessary degree of severity of symptoms (medical criterion), and, in addition, can be considered causally related to such exposure according to the epidemiological investigation (impact criterion, or legal criterion).

So, for example, in Japan and Korea, medical criteria are introduced separately for such diagnoses as lung cancer, asbestosis, pleurisy (the diagnosis of "mesothelioma" is also mentioned, but does not require specification, since this condition itself indicates exposure to asbestos), and provides for different requirements for the number of asbestos bodies to be determined, visual characteristics of pleural plaque and others . It is noteworthy that while in Korea the fact of a disease with specified characteristics is at the same time a confirmation of harmful effects, in Japan it is mandatory to comply with a legal criterion involving the provision of evidence of such in the form of data on the professional activity and (or) place of residence of the victim, as well as the intensity of exposure to asbestos in certain positions or under specified conditions. In contrast to this approach, Belgium has no specific requirements for the medical picture of the disease, since diagnosing a disease from a mandatory list is only the first step towards determining a legal criterion based on similar principles, and in France, in principle, there is no list of diseases caused by asbestos, i.e. any damage to health can be accepted as a basis for payment from a special fund, subject to the criteria of influence.

The Japanese experience in the environmental field deserves a more detailed consideration, since the development of special compensation mechanisms here does not imply the abandonment of the institution of tort obligations, but ensures a balanced modification of the construction of tort liability. The legal basis for the application of such mechanisms was first formed in 1973, when a special law established a certification system for victims of adverse environmental factors. By issuing a special document (certificate), the fact of the origin of health damage from adverse environmental influences was confirmed, while initially, to pass the certification procedure, it was enough to confirm the fact of living in an ecologically unfavorable territory belonging to class I or II.

Class I was assigned to places of residence on the basis of a significant excess of the average indicators of general morbidity in the country (in terms of diseases allegedly caused by atmospheric air pollution - asthma, chronic bronchitis, etc.). The status of Class II territories was assigned to areas within the boundaries of prefectures for which a causal relationship between pollution and specific morbidity had already been established in court population (including cases of Minamata disease caused by mercury poisoning, itai-itai disease caused by poisoning with cadmium salts, etc.) ^{[21, p. 105]}.

In the process of practical application, the scheme has undergone significant changes related both to the adjustment of the content of the medical criterion and to the definition of legal means of compensation. In particular, since 1988, Japan has not carried out certification of new victims of Class I ecologically unfavorable territories, since the fact that there is no causal relationship between atmospheric air pollution and most common diseases is considered to have found its scientific justification. Business entities do not make payments directly to victims, but only participate in the formation of a special fund, paying an additional fee for adverse environmental effects (provided they carry out potentially dangerous environmental activities – this feature is still established by legal criteria) ^{[22, p. 400]}.

Despite these changes, the basis of the scheme used is still the assumption of the environmental danger of certain types of activities, coupled with an irrefutable presumption of the origin of harm to health from pollution, based on available knowledge about the causes and symptoms of environmentally caused diseases (medical criterion), the widely interpreted property of the prejudice of decisions on previously considered environmental disputes (legal criterion). And here it should be noted that the domestic doctrine reveals the point of view according to which the similarity of the clinical picture of the course and signs of diseases of victims who were subjected to homogeneous environmental impact (compared with the requirements previously satisfied in the courts) is considered a reason for the simplified settlement of new claims ^[23]. At the same time, such an understanding of prejudice clearly contradicts the current procedural legislation (Article 61 of the CPC of the Russian Federation), which does not provide for exemption from proving certain legally significant circumstances on the basis of "similarity" or "homogeneity" of the descriptive characteristics of the legal situation and the evidence presented ^{[24, p. 84; 25, p. 38]}.

It seems that in order to determine the specifics of the conditions for the occurrence of tort liability for harm to health in the environmental sphere, it is advisable to use a teleological method for determining the limits of such liability, which allows to eliminate the characteristic of "mediation" of certain losses by a value-oriented interpretation of a specific protective norm, giving a comprehensive description of this institution through a set of rights and legitimate interests of the subject that it protects. From such positions, ecogenic harm to health should be considered direct if the risk of causing it is characteristic of a certain type of activity (environmentally hazardous activity), since such a risk is initially assumed by the subject of economic activity "on himself", is considered to be in the zone of his direct influence.

All this together allows us to conclude that in order to ensure the real compensability of harm to health in the environmental sphere, the presumption of environmental danger of certain types of economic activity should be accompanied by the legal consolidation of an irrefutable presumption of the origin of harm to health from adverse environmental effects, based on available knowledge about the causes and symptoms of environmentally caused diseases (medical criterion), belonging of the victim to a risk group based on residence or work in the infected area (legal criterion). The introduction of an additional presumption must be accompanied by the establishment of an obligation of business entities to create conditions for the implementation of non-contractual forms of compensation, alternative to insurance compensation within the framework of liability insurance. In particular, we can talk about the conclusion of risk-sharing agreements, the terms of which will provide for the creation of a quasi-insurance socially useful fund, payments from which will repay obligations to victims in an amount that allows taking into account the loss of the ability to work with pay, the need for outside care, medical care, etc., as well as the emergence of specific needs, due to the nature of the environmental impact (the need to move to another area in order to avoid exacerbation of symptoms, to learn a new profession due to the presence of medical contraindications to working with certain substances and substances).