It is submitted that Maltese law on environmental damage should be read in a structured and sequential manner, with each legal instrument performing a distinct function and not being conflated with others.
Articles 74, 76, 77 and 78 of Cap. 549 provide the statutory basis for stop and compliance orders and allied measures. In broad terms, these provisions empower the authority to order the cessation of unlawful activities, to require that an unlawful situation be regularised, to impose conditions and time-limits, and, where necessary, to intervene directly to carry out works and recover costs. Their primary rationale, here, is preventive and corrective: that is to say, they are designed to arrest ongoing or imminent harm and to secure basic compliance with environmental law in an expeditious manner. They do not, taken alone, amount to a complete system of environmental liability in the sense contemplated by S.L. 549.97 as will be explained shortly. Rather, they supply the operational tools through which the authority acts on the ground, while S.L. 549.97 supplies the more specific rules governing who is to be treated as responsible for environmental damage and how remediation must be conceptualised and implemented.
Likewise, subsidiary Legislation 549.72, which regulates the calculation of daily administrative fines associated with enforcement notices, plays a supporting but important role. Once again, the logic here is to generate sustained financial pressure so that remaining in breach is economically unattractive: the longer the infringement persists, the higher the cumulative penalty. These fines are primarily deterrent in nature. They are intended to induce prompt compliance with orders rather than necessarily to recover the full cost of environmental restoration.
Meanwhile, subsidiary Legislation 549.97 does not displace the ordinary powers of the Environment and Resources Authority (ERA) under the Environment Protection Act (Cap. 549) but superimposes a specific set of rules on how responsibility for environmental damage is to be attributed and how that damage is to be prevented and repaired, on the basis of the “polluter pays” principle. Infact, regulation 2 of S.L. 549.97 makes this policy choice explicit: its purpose is to establish a system of environmental liability grounded in the principle that the person who causes environmental damage should bear the cost of preventing and remedying it, while at the same time giving effect to the European Union directive on environmental liability. The object, here, is therefore not merely punitive. It is remedial and allocative: environmental harm is to be repaired, and the financial and operational burden is to fall on the correct person or entity rather than on the community at large.
In short, S.L. 549.72 is principally concerned with deterrence and compliance pressure; S.L. 549.97 is concerned with the allocation of the full cost of environmental damage, including the cost of restoring the environment as far as reasonably achievable.
Having explained the above framework, this is not to say that such administrative fines cannot be contested.
The solution lies Article 47(1) of the Environment and Planning Review Tribunal Act (Cap. 551) which furnishes the jurisdictional gateway through which third parties may contest how S.L. 549.97 is being applied. In essence, this provision allows appeals by third parties in defined situations, including where questions of prevention and remedy of environmental damage arise under S.L. 549.97. The rationale of Article 47(1) is to ensure that decisions taken under the environmental damage regime are not left exclusively to bilateral dealings between the authority and the operator, but – interestingly – may be subjected to independent scrutiny at the instance of persons with a legitimate interest in environmental protection, including non-governmental organisations.
Within S.L. 549.97 itself, Regulations 7 and 13 define, in a complementary fashion, who may activate the regime and how they may participate within it.
Regulation 13(1) provides, in substance, that any natural or legal person who is affected or likely to be affected by environmental damage, or who has a sufficient interest in environmental decisions relating to that damage, or who alleges that a right arising from a valid licence or permit is being disturbed, is entitled to submit observations to the competent authority and to request that it take action under the regulations.
Regulation 7(1)–(2) then clarify what is meant by “sufficient interest”. They indicate that a person will normally be regarded as having such an interest where, for example, that person has availed himself of the third-party participation procedure under the Development Planning Act or has been treated as a consulted party in an environmental impact assessment process. Importantly, Regulation 7(2) goes further and provides that the interest of environmental NGOs, if they are properly established to promote environmental protection and satisfy the requirements of the voluntary organisations legislation, is automatically sufficient for the purposes of the regulations, and that such organisations are to be treated as holders of rights which may themselves be affected by cases of environmental damage.
The combined effect of Regulations 7 and 13 is that access to the environmental damage regime is deliberately broad, with environmental NGOs placed in a legally privileged position. The law clearly contemplates that they, and other concerned parties, should be able to bring information to the authority, to press for action, and to participate in decisions concerning the treatment of environmental damage. This is a deliberate choice to embed civil-society oversight within the system rather than to confine environmental liability to closed exchanges between regulator and operator.
Regulation 8 then governs the determination of remedial measures. Regulation 8(1) may be paraphrased as follows: in ordinary circumstances, the operator—that is, the person or entity whose activity caused the damage—is required to identify potential remedial measures in accordance with a technical schedule and to submit these proposals to the authority for its approval, unless the authority has already taken certain steps directly under another provision. The conceptual point is that the operator must not only bear the cost of remediation but also assume the responsibility of proposing how the damage is to be repaired. Regulation 8(2) then provides that the authority must decide which remedial measures are to be carried out, again with reference to the technical schedule and in cooperation with the operator as necessary. The function of this provision is to ensure that the decisive judgment on remediation rests with the authority and is taken by reference to the criteria and objectives set out in the regulations, rather than being left to the operator’s unilateral assessment.
Regulation 8(3) addresses the situation in which the authority is confronted with more than one case of environmental damage and is unable to ensure that all necessary remedial measures are undertaken simultaneously. In such a case, the authority is permitted to decide which case should be addressed first, having regard to factors such as the gravity and extent of the damage, the prospects of natural recovery, and any risks to human health. The rationale is pragmatic: administrative and financial resources are finite, and the law acknowledges that prioritisation is sometimes unavoidable, while still requiring that all damage be tackled in due course.
Regulation 8(4) constitutes the central participatory safeguard at the remedial stage. It requires the authority, when deciding on remedial measures, to call those persons who enjoy the rights described in Regulation 13(1) and, in all cases, the owners of land on which remedial measures will be carried out, and to afford them the opportunity to submit observations which the authority must then take into account. The purpose of Regulation 8(4) is to translate the more general participatory and standing rights contained in Regulations 7 and 13 into a concrete procedural step at the point where it matters most: when remedial measures are being framed and approved. It establishes that interested parties—including environmental NGOs and affected residents—are not confined to complaining at the moment when damage is first reported, but are entitled to be heard on the content of the remedial response before the authority reaches a settled position.
It is submitted that the four sub-provisions of Regulation 8 should be read as operating side by side, rather than as qualifying or implicitly nullifying each other. The authority’s power to proceed on the basis of operator proposals under Regulation 8(1) does not extinguish its duty under Regulation 8(4) to consult those with recognised interest and to consider their observations. Nor can the duty to consult be treated as vanishing merely because the operator has failed to comply with an earlier obligation or because the authority has chosen to take certain preliminary steps on its own initiative. The natural reading of the text is that where remedial measures are being formulated and adopted, those with standing under Regulation 13(1) ought to be brought into the process.
At the same time, it can be said that a measured principle of materiality has a legitimate place in assessing compliance with Regulation 8(4). Where, as a matter of fact, environmental NGOs or other interested parties have received copies of method statements and other key documentation at a sufficiently early stage, have been informed of the nature and scope of the proposed remedial measures, and have had a real opportunity to formulate and transmit observations before the remedial works are completed, the underlying purpose of Regulation 8(4) may be said to have been fulfilled in substance, even if the authority has not observed ideal formalities in “calling” them. In such circumstances, any allegation of breach should examine not only the authority’s formal conduct but also the way in which the interested parties used—or failed to use—the opportunities available to them. If, despite having the relevant material, they do not raise any specific concerns as to the adequacy, proportionality or design of the remedial measures and remain at the level of general criticism that enforcement is not “effective” or “comprehensive”, the claim that their participatory rights have been emptied of practical content is necessarily weakened. Nevertheless, this reasoning must not be pushed to the point where the scheme is inverted and NGOs are expected to assume the technical responsibilities of the operator or the authority. The regulations do not require them to produce alternative engineering designs; their proper role is to identify environmental concerns, deficiencies and risks, and to bring these to the attention of the decision-maker.
Summing up, the polluter pays principle reflected in Regulation 2 ought to be understood in a substantive manner. It is not sufficient that “someone” pays some amount. The essential requirement, therefore, is that the person or entity whose activity caused the environmental damage is clearly identified as the operator and bears the full cost of prevention and remediation.
One final point which is more of an opinion to add some context – where works are carried out by contractors on behalf of a public agency, it is not convincing, in the longer term, to treat the contractor as the sole “polluter” if the public agency has in fact initiated, directed and derived the functional benefit from the project.
