The public's attention, over the last little while, has been focused on the environmental disaster on the River Oder. This state of affairs is causing concern, not only because of the scale of the environmental damage, but also because, despite the passage of time, not only has it not been possible to identify the responsible party, but it is not known what substance caused the pollution.
This catastrophe is undoubtedly a source of harm to all those who earn their living from the Oder River, that is, in particular it is a source of livelihood for entrepreneurs in the tourism, agriculture and fishing industries.
In addition, although there is as yet no information about the victims, the damage has most likely been caused to people's health, or that of their pets, which is already confirmed.
The fundamental question to be asked is who will be liable for their losses and harm caused by the poisoning of the river.
Civil liability - compensation, for this type of incident is regulated by the Law - Environmental Protection Law.
The Act indicates that, in principle, the provisions of the Civil Code apply to liability for damage caused by environmental impacts.
The Act furthermore expressly indicates that anyone who is directly threatened or harmed by an unlawful impact on the environment may demand that the entity responsible for the threat or infringement restore the lawful state and take preventive measures, in particular by installing installations or equipment to prevent the threat or infringement; if this is impossible or excessively difficult, he or she may demand that the activity causing the threat or infringement be discontinued.
In light of the above, therefore, there may be liability on the part of the person who caused the environmental disaster, but also on the part of public institutions if they succeed in alleging that, had they reacted earlier, correctly, decisively, the disaster would not have occurred or the scale would have been smaller. It is undeniable that, for the time being, it may be very difficult to hold the direct perpetrator accountable, due to his failure to be detected. Even if he is found, due to the extent of the damage and the number of victims, his ability to pay may be low, and even a damages award obtained, will only remain a claim on paper.
For these reasons, it may be justifiable to hold accountable the public authorities that, by their omission, despite their statutory duties, allowed the disaster to unfold. The obligations to respond to and prevent such situations are regulated, inter alia, by the Act on Prevention and Remediation of Environmental Damage.
Pursuant to Article 417. § 1 of the Civil Code, the State Treasury or a unit of local self-government or another legal person exercising this authority by law is liable for damage caused by an unlawful act or omission in the exercise of public authority.
Paragraph 2 indicates that if the performance of public authority tasks has been outsourced, on the basis of an agreement, to a local government unit or other legal person, joint and several liability for the damage caused shall be borne by their executor and the contracting local government unit or the State Treasury.
Media reports indicate that, despite news of the disaster having been received as recently as July, no tangible action was taken for several weeks, in particular to neutralise or dissolve the contamination.
Evidence of the ineffectiveness of action appears to be the scale of the phenomenon in particular.
A number of regulations impose an obligation on public authorities to take adequate action, in such emergency situations.
Confirmation of the inadequacy of the response and the failure to meet statutory obligations can also be seen in the personnel decisions that were taken after the scale of the disaster became more widely known.
Undoubtedly, quicker action, could have led to a significant reduction in the scale of the disaster, or even to its prevention.
However, critical conclusions should be reserved until the matter is clarified.
However, if it is confirmed that earlier, effective, lawful action would have led to the prevention of the damage, the prerequisites for liability for damages will be met.
It cannot be ruled out that it will be possible for the victims to successfully claim compensation for their losses and lost earnings, against the public authorities responsible for protecting the population from this type of disaster, on the grounds that the damage was caused by a lack of adequate action.
However, this issue will require an extensive investigation and an assessment by environmental, chemical and hydrological specialists.
Waldemar Szubert - Legal Adviser
