Defining pollution

During the 1970s, pollution in the context of the PPP referred to waste products that were put into the air and water, but by 2002 the OECD (quoted in JWPTE 2002: 11) had expanded the definition of pollution to:

the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere with amenities and other legiti­mate uses of the environment.

The definition of pollution was later broadened to cover many types of environmental damage, not just those caused by the discharge of con­taminants. The EC (2004: 59) defines 'environmental damage' as:

(a) damage to protected species and natural habitats, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species...

(b) water damage, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential. of the waters concerned.

(c) land damage, which is any land contamination that creates a sig­nificant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under and, of substances, preparations, organisms or microorganisms.

The EC and the OECD define pollution by its impact on the environment and human health, rather than in terms of compliance with government regulations. This raises the question of whether a company that complies with environmental regulations and standards set by government authorities should bear the costs of its pollution.

Nicolas de Sadeleer (2002: 40) argues that the definition of pollution should be independent of what may or may not be legal. He argues that this is a fair approach because polluters are responsible for their dis­charges, even if a government body authorises them, otherwise the public would have to bear the costs of clean-up when government regu­lations are inadequate.

Defining pollution by its impact rather than by government-set stan­dards is also appropriate, according to de Sadeleer, because it provides polluters with an incentive to do better than government-set standards. It is legally coherent because it fits with civil liability, which requires pol­lution to be 'evaluated from the perspective of the requirement of duty of care owed by the liable party, whether or not he respected the stan­dards incumbent upon him'. Being allowed to pollute by the government should not absolve a polluter from liability.

The issue of what environmental impacts are deleterious or impair and interfere (as in the OECD definition of damage), and how delete­rious an impact should be before it has to be paid for or prevented, is not defined by the PPP and remains both a scientific and a political question. However, some legislation does attempt to define significant damage, and the EC has developed criteria for deciding if damage is significant (EC 2004).