Historical Pollution and the Future of the Environment: The Care of «Our Common House» Through Green Corporations

As Costantino Grasso noted in his article entitled “Final warning to the world,” in 1992, scientists had already issued an ultimatum to humanity invoking the adoption of prompt and vigorous measures aimed at protecting the environment.

There have been all too many cases of ecological disaster and environmental pollution that have acted as a “warning alarm” to humanity. They represent a hard lesson from the past for all of us, and, as we know, understanding our past is the key to better address our future. Then, it is not surprising that over the course of the latest decades, new and interesting reflections have emerged from studies focusing on “historical pollution” and the current environmental crisis.

The Encyclical letter Laudato sì [Praise be to you] “on care of our common home” by Pope Francis includes interesting reflections on the matter. Albeit an apostolic letter with an inherent religious nature, the Encyclical allows us to reflect also from a secular perspective on the relationship between environment and industry. Specifically, in the letter, the Pope evokes the past, reasons on the present, and looks to the future of the environment.

In choosing the title of his Encyclical, the Pope recalled the verses of The Canticle of the Sun, also known as Laudes Creaturarum (Praise of the Creatures) composed by Saint Francis of Assisi in XXIII century (around 1224). This was one of the first poems written in Italian, and also an iconic piece of Italian literature. As the Pope evoked: “In the words of this beautiful canticle, Saint Francis of Assisi reminds us that our common home is like a sister with whom we share our life and a beautiful mother who opens her arms to embrace us.”

Several centuries have passed since those words were written. What happened to the beautiful nature that Francis of Assisi called “our sister”? In its introductory paragraph, the Encyclical emphasized that “this sister now cries out to us because of the harm we have inflicted on her by our irresponsible use and abuse.” These words induce us to reflect on the adverse effects that human activities have exerted upon nature over the centuries.

The Pope also offered an important key to understanding the relationship between the past, “the world of nature,” and the present, “the world of science and technology.” He states: “Science and technology are not neutral; from the beginning to the end of a process, various intentions and possibilities are in play and can take on distinct shapes. Nobody is suggesting a return to the Stone Age, but we do need to slow down and look at reality in a different way, to appropriate the positive and sustainable progress which has been made, but also to recover the values and the great goals swept away by our unrestrained delusions of grandeur.” We must share such a perspective – a responsible use of science and technology represents the way forward.

From a corporate social responsibility perspective, the Pope focused on the long-lasting environmental and social damages caused by past irresponsible industrial activities. Specifically, he highlighted how in some cases, “after ceasing their activity and withdrawing”, multinational companies “leave behind great human and environmental liabilities such as unemployment, abandoned towns, the depletion of natural reserves, deforestation, the impoverishment of agriculture and local stock breeding, open pits, riven hills, polluted rivers and a handful of social works which are no longer sustainable.” The Pope hereby made a direct reference to the social, environmental and economic effects of a phenomenon known as “historical pollution.”

This phenomenon was the object of a recent research carried out by a group of academics, whose concluding observations have been published in a volume entitled “Historical Pollution: Comparative Legal Responses to Environmental Crimes.”

The notion of “historical pollution” should not be confused with the “history of pollution,” which is part of environmental history. A historical perspective is crucial to understanding the phenomenon behind historical pollution, yet does not suffice in explaining it. To really understand the meaning of “historical pollution,” one should not focus exclusively on the past, but rather analyze the link between the past and the present. As a matter of fact, despite the notion that historical pollution is open to broad interpretations, its very concept refers to environmental issues that lie between the past and the present as it includes cases of “current” pollution caused by emissions resulting from “past” corporate activities. In other words, it focuses on corporate activities that, although at the time in which they were carried out were compliant with the existing environmental regulations and in line with the existing scientific knowledge, subsequently exerted adverse effects on the environment. Such a concept was highlighted by Lorenzo Natali in its chapter entitled: “The Contribution of Green Criminology to the Analysis of Historical Pollution.” In the chapter, the author identified the common features of various phenomena of historical pollution from a green criminology perspective.

In particular, from a green criminology perspective, historical pollution represents the study of the adverse environmental effects that were “invisible” at the time in which the related industrial activities were carried out, as they tend to emerge only after a long period of time, sometimes even after several decades. Traditionally, this kind of pollution has often been caused by the release of persistent organic pollutants (POPs) or other persistent substances in groundwater and soil.

Because of its adherence to such an approach to historical pollution, this article focuses only on corporate activities that, though compliant with the existing environmental regulations and with the existing scientific knowledge at the time they were carried out, subsequently exerted adverse effects on the environment. Therefore, it does not consider cases of “current” pollution caused by “past” activities perpetrated in clear breach of criminal laws, nor does it consider cases caused by one-off technological disasters, even if they may have produced effects destined to last over time (for instance, the nuclear disasters of Chernobyl and Fukushima, the Bhopal disaster).

Typical cases of historical pollution include the U.S. Love Canal case, the Caffaro industry contamination in Italy, and the Huelva case of industrial-chemical pollution in Spain. As I have pointed out in my chapter “Historical Pollution and Long-Term Liability: A Global Challenge Needing an International Approach?,” this phenomenon is more widespread than commonly believed and is not limited to Western countries. It also led to the adoption of ad hoc regulations through which many countries have attempted to address it. For instance, in the United States, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted as a response to the Love Canal case.

From a criminal law point of view, it is interesting to note that corporations, which acted in accordance with the law at the time of the facts, cannot be punished for having caused this type of historical environmental damage. This is due to the principles of legality (nullum crimen sine lege) and non-retroactivity in criminal matters, which are considered fundamental values of the rule of law in democratic societies.

As a result, the pressing issues raised by historical pollution, which resulted from industrial activities that were lawful at the time of the conduct, cannot be resolved by relying on the criminal justice system. One must rather turn to civil, social and administrative responses aimed at “brownfield redevelopment” and at the prevention of human rights violations. Indeed, in relation to the latter, the current consequences of historical pollution, which mainly consist of water and soil contamination, can exert adverse effects on the people living in the polluted areas, amounting even to violations of their fundamental human rights.

As I noted in my chapter “Historical Pollution and Human Rights Violations: Is There a Role for Criminal Law?,” the case-law of the European Court of Human Rights dictates that each State Party must adopt procedural and substantive measures aimed at preventing and solving historical pollution problems currently affecting people’s lives. Such an obligation has also been reiterated in varying terms within the context of other international conventions like the American Convention on Human Rights and African Charter on Human and Peoples’ Rights. Consequently, it is possible to affirm that each State party to such conventions has the duty of safeguarding human rights through the development and implementation of environmental-protection measures and related remedial measures. The emergence of this form of state responsibility, though enforced in different degrees, can play a crucial role especially where, as Costantino Grasso highlighted in relation to the oil and gas industry, the combination of widespread corporate corruption and inherent intrusiveness of industrial activities inevitably lead to severe environmental damages as well as major risks for human health.

In order to respond adequately to the problems posed by historical pollution, a “green partnership” between public authorities and corporations – at local and global levels – is necessary to plan the redevelopment of polluted areas.

States should start or continue to favor, inter alia through fiscal and economic measures, all those activities, products, and services characterized by a “green brand” fostering corporate investments aimed at “greening” business activities. At the same time, corporate activities characterized by a “black brand” should be discouraged and regulated in accordance with the high social costs they usually cause.

Moreover, it is fundamental to promote corporate social responsibility so that firms conduct their business operations more responsibly in the future even where domestic regulations are inadequate to protect the environment in an effective way. The development of the “green industry” is not only essential to addressing the consequences of past harmful activities but also represents a vital component for achieving a sustainable and economically viable future.