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Property liability for environmental violations represents a form of civil liability aimed at compensating damage caused to the environment, health, or property of citizens. It is applied in cases of breach of contractual obligations or causing harm outside of contractual relations, ensuring the restoration of violated rights and ecological balance.
According to current legislation, everyone has the right to a favorable environment and compensation for damage caused by environmental violations. Compensation for damage is carried out in full extent and includes both actual damage and lost profits, and liability may be imposed not only on the person who caused the harm but also on other persons involved in activities leading to violation of environmental standards.
The Federal Law "On Environmental Protection" establishes the obligation of legal and physical persons to compensate for damage caused by pollution, depletion, degradation, or spoilage of natural resources. The amount of compensation is determined taking into account actual costs for restoring the environment's condition, approved methodologies or reclamation projects; if these are absent, it is determined based on actual expenses and losses.
Judicial practice shows that property liability may be joint and several: both the client and the contractor can be held liable simultaneously if their actions jointly caused harm to the environment. At the same time, grounds for exemption from liability do not exist if the violation occurred within the framework of economic activity, even if the work was carried out under a state contract.
The main objective of property liability is to restore the disturbed ecological condition and prevent repeated violations. This mechanism encourages participants in economic activities to strictly adhere to environmental standards and ensures a balance between economic interests and the preservation of natural resources for society.
According to Yu.G. Zharikov, civil (property) liability is mainly regulated by civil legislation, but has its specificity due to the particularities of environmental relations. This type of liability arises from the breach of contractual obligations or causing property damage outside of a contract. The most characteristic sanction here is the compensation of property damage (losses) by the offender1.
A similar position is held by M.M. Brinchuk, who believes that civil liability in the sphere of interaction between society and nature mainly consists in imposing an obligation on the wrongdoer to compensate the injured party for property or moral damage caused as a result of violating legal environmental requirements2.
According to Article 42 of the Constitution of the Russian Federation, everyone has the right to a favorable environment, reliable information about its condition and to compensation for damage caused to his health or property by an environmental violation. The above provision of the Constitution of the Russian Federation is clarified in Article 79 of the Federal Law "On Environmental Protection", according to which, harm caused to the health and property of citizens due to the adverse impact of the environment as a result of business and other activities of legal and physical persons shall be fully compensated. The determination of the scope and amount of compensation for damage caused to the health and property of citizens as a result of violation of environmental protection legislation is carried out in accordance with the legislation.
Article 1064 of the Russian Civil Code establishes general grounds for liability for causing damage. According to this article, damage caused to a person's personality or property, as well as damage caused to the property of a legal entity, must be fully compensated by the person who caused the damage. The law may impose the obligation to compensate damage on a person who is not the cause of the damage. The law or contract may establish an obligation for the person who caused the damage to pay compensation to the victims in addition to compensating the damage. A person who caused the damage is exempt from liability for compensation if they prove that the damage was not caused through their fault. The law may provide for compensation of damage even in the absence of fault on the part of the person who caused the damage. Damage caused by lawful actions must be compensated in cases provided for by law. Compensation for damage may be refused if the damage was caused at the request or with the consent of the victim, and the actions of the person who caused the damage do not violate the moral principles of society.
According to Article 15 of the Russian Civil Code, a person whose rights have been violated may claim full compensation for damages sustained, unless the law or contract provides for compensation in a smaller amount. Damages are understood as expenses incurred or that will be incurred by the person whose rights have been violated in order to restore the violated right, loss or damage to its property (actual damage), as well as income not received which the person would have obtained under normal conditions of civil turnover if their right had not been violated (lost profit).
Article 77 of the Federal Law "On Environmental Protection" provides for the obligation to fully compensate damage to the environment, according to which legal and physical persons who have caused harm to the environment as a result of its pollution, depletion, damage, destruction, irrational use of natural resources, degradation and destruction of natural ecological systems, natural complexes and natural landscapes, and other violations of environmental protection legislation are obliged to compensate it in full accordance with the legislation.
Damage to the environment caused by an entity engaged in economic or other activities, including a project for which a positive conclusion of state environmental expertise has been issued, including activities related to the extraction of components of the natural environment, shall be compensated by the client and (or) the entity engaged in economic or other activities. Damage to the environment caused by an entity engaged in economic or other activities is compensated in accordance with approved tariffs and methodologies for calculating the extent of damage to the environment, and if such tariffs and methodologies are not available, based on actual costs incurred to restore the disturbed state of the environment, taking into account the losses sustained, including lost profits.
Article 78 of the Federal Law "On Environmental Protection" provides for the procedure for compensating damage to the environment caused by violations of environmental legislation, according to which compensation for damage to the environment caused by violations of environmental legislation is carried out voluntarily or upon a court decision or an arbitration court decision.
The determination of the extent of damage to the environment caused by violation of environmental legislation is carried out based on actual costs for restoring the damaged state of the environment, taking into account incurred losses, including lost profits, as well as in accordance with reclamation and other restoration work projects; if such projects are not available, the damage to the environment shall be calculated in accordance with the rates and methodologies approved by executive authorities responsible for state management in the field of environmental protection. Based on a court or arbitration court decision, damage to the environment caused by violation of environmental legislation may be compensated by imposing an obligation on the respondent to restore the damaged state of the environment at their own expense in accordance with the restoration work project. Claims for compensation for damage to the environment caused by violations of environmental protection legislation may be brought within twenty years.
The Department of Forestry of a subject of the Russian Federation (hereinafter - the Department) filed a lawsuit with the court against a joint-stock company seeking recovery in monetary form of damage caused to the environment, due to the company's activities related to the construction of an automobile road within a state natural reserve.
The decision of the first instance court, left unchanged by the decisions of the appellate and cassation courts, denied the claim.
The courts established that for the reconstruction of the automobile road, a land plot was provided to the company on the territory of a federal-level state natural reserve. Along the route of the automobile road, the company has explored gravel soil deposits. As a result of the inspection conducted by the state environmental supervision authority, it was found that the company illegally (without obtaining a license) mined a quarry for the purpose of filling the under-construction highway, as well as complete destruction of the forest cover at the site of the mining.
Refusing to satisfy the claim, the first instance court, with which the appellate and cassation courts agreed, concluded that there was no unlawfulness in the company's actions, since the work was carried out within the framework of fulfilling obligations under a state contract providing for gravel extraction from the quarry.
The judicial panel of the Supreme Court of the Russian Federation overturned the court decisions in the case, drawing attention to the following.
In accordance with paragraph 1 of Article 58 of the Environmental Protection Law, natural objects having special environmental protection, scientific, historical and cultural, aesthetic, recreational, health-improving, and other valuable significance are subject to special protection.
On the territories of state nature reserves, any activity is permanently or temporarily prohibited or restricted if it contradicts the objectives of establishing state nature reserves or causes harm to natural complexes and their components. Damage caused to natural objects and complexes within specially protected natural areas must be compensated (paragraph 1 of Article 24 and paragraph 3 of Article 36 of Federal Law No. 33-FZ dated March 14, 1995 "On Specially Protected Natural Areas"; hereinafter - the Law on Specially Protected Natural Areas).
In accordance with paragraph 1 of Article 77 of the Environmental Protection Law, the basis for holding a person liable in terms of property liability is causing damage manifested by a negative change in the state of the environment, in particular its pollution, depletion, degradation, destruction of natural resources, degradation and destruction of natural ecological systems, death or damage to objects of fauna and flora, and other adverse consequences.
At the same time, pursuant to the first paragraph of Article 1080 of the Civil Code of the Russian Federation (hereinafter - the CC RF), persons who jointly caused damage to the environment are liable solidarily. Paragraph 9 of Resolution No. 49 states that the joint nature of actions may be evidenced by their coordination, synchronization and direction towards the implementation of a common intention for all acting parties. Thus, persons liable in solidarity may include the client who has commissioned works causing damage to the environment and the contractor who actually performed them.
When considering the case, the Department paid attention to the facts of complete destruction of the forest cover at the site of the quarry and damage caused to the soils as an object of environmental protection. Taking into account that the company, as a contractor under the state contract, acted in the interests of the client, the presence in the contract of a clause stipulating the contractor's obligation to obtain permits for activities prior to commencing work could not serve as a basis for exempting the company from liability for compensation. This circumstance could serve as a basis for imposing the obligation to compensate damage jointly on the contractor and the client.
Since the courts did not establish whether the company's activities in extracting common minerals within the nature reserve area complied with the regime of this specially protected natural territory, the arguments of the Department regarding harm to the environment were not refuted and the issue of joint liability of the contractor and the client was not resolved, the case has been referred for reconsideration.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The Federal Service for Supervision of Natural Resources has filed a lawsuit against the forest user based on paragraph 1 of Article 77 of the Law on Environmental Protection, seeking compensation for damage caused to the habitat of wildlife objects, calculated in accordance with the Methodology for Calculating the Amount of Damage Caused to Wildlife Objects Listed in the Red Book of the Russian Federation and Other Wildlife Objects Not Related to Hunting and Fishing, as well as Their Habitat, approved by the Order of the Ministry of Natural Resources of the Russian Federation dated April 28, 2008 No. 107 (hereinafter referred to as Methodology No. 107).
According to the administration's opinion, as a result of the oil pollution, the pipeline owner caused harm to the habitat of animal species belonging to invertebrates. The fact of oil pollution was confirmed by a court decision that had become legally binding in another case, under which damages caused to forests due to violation of forestry legislation were recovered from the liable party. The amount of damage was calculated in accordance with Appendix No. 4 to the Features of Compensation for Damage Caused to Forests and Natural Objects Located Therein Due to Violation of Forestry Legislation, approved by Government Decree of the Russian Federation dated December 29, 2018, No. 1730 (hereinafter - Methodology No. 1730).
The decision of the first instance court, left unchanged by the decisions of the appellate and cassation courts, denied the claim.
Courts came to the conclusion that there are no grounds for imposing on the pipeline owner an obligation to compensate again for the damage caused to the environment, as well as applying the provisions of Methodology No. 107 and Methodology No. 1730 to one case of oil spill on forest fund lands.
The judicial panel of the Supreme Court of the Russian Federation overturned the court decisions made in the case and referred the matter for reconsideration on the following grounds.
According to Article 5 of the Forest Code of the Russian Federation, forest legislation regulates relations in the area of use, protection, preservation, and reproduction of forests, based on the concept of a forest as an ecological system or as a natural resource.
In accordance with Article 100 of the Forest Code of the Russian Federation, the amount of compensation for damage caused to forests as an ecological system is determined based on the natural properties inherent to forests (uniqueness, ability to regenerate, location and other properties) in the manner provided by the Law on Environmental Protection, taking into account the features of compensation, rates and methodology for determining its size approved by the Government of the Russian Federation.
The amount of damage caused to soils in forests calculated according to the relevant methodology provides for soil reclamation up to a state at which work on forest restoration can be carried out in the volume of the main tree species. Compensation for damage entails conducting soil reclamation sufficient for forest restoration, however it does not include compensation for damage to other components of the forest as a natural object.
In turn, the methodology applied by the authority handling this case establishes formulas for calculating the extent of damage caused to objects of the animal world, including the destruction or damage to their habitat. According to the methodology, in cases where damage is caused to the habitat of several species of objects of the animal world, the calculation of the amount of damage is carried out by summing the compensation amounts calculated for each object of the animal world.
Thus, even similar works (for example, restoration of the soil layer), provided for by the relevant methodologies for calculating damage, have different meanings: soil restoration for the purpose of growing forest vegetation and soil restoration for the purpose of restoring habitats of objects of the animal world.
In such circumstances, it was incorrect for the courts to conclude that compensation for damage to forests also covered damage to objects of the animal world. Compensation is due for damage caused to each component of the natural environment, and compensation for environmental damage in relation to one component does not replace the obligation to compensate damage to other components.
Source: Overview of judicial practice on issues of application of legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The authorized supervisory body in the field of natural resource use filed a lawsuit against a joint-stock company seeking compensation for damage caused to minerals due to the extraction of mineral raw materials (rap) without having obtained, in accordance with the law, the right to use minerals in the form of a license for the use of minerals.
The court partially satisfied the claim.
The appellate court, whose conclusions were agreed upon by the cassation court, overturned the court's decision and denied the claim, citing the absence of damages due to the failure to prove the fact of harm caused to the environment. The courts also noted that the company had taken all timely measures within its control to reissue the license and during the consideration of the case in the first instance court, the defendant was granted a license for the use of minerals.
The judicial panel of the Supreme Court of the Russian Federation overturned the decisions of the appellate court and the cassation court, upholding the decision of the first instance court on the following grounds.
The Law of the Russian Federation dated February 21, 1992, No. 2395-I "On Subsoil" (hereinafter referred to as the Subsoil Law) defines the legal and economic foundations for comprehensive rational use and protection of subsoil, ensures the protection of the interests of the state and citizens of the Russian Federation, as well as the rights of subsoil users.
The imperative method of regulating the use of subsoil is manifested in the necessity for interested parties to obtain a special state permit - a license. However, as established by the courts, the respondent has extracted rapa without a license.
Violation of the licensing procedure for the use of natural resources, and the use of mineral resources without transferring them into use in accordance with legal requirements and under conditions specified by the license constitutes unlawful behavior and, according to Article 51 of the Law on Mineral Resources, entails an obligation to compensate damage to the state, the amount of which is determined in accordance with the Rules for Calculating the Amount of Damage Caused to Mineral Resources as a Result of Violation of Russian Federation Legislation on Mineral Resources, approved by Government Decree No. 564 dated July 4, 2013 (hereinafter - Rules).
Damage caused to mineral resources is deemed to include, in particular, damage resulting in the loss of reserves of minerals due to, among other things, their contamination, flooding, waterlogging, fires, unauthorized use of mineral resources, as well as violation of the properties of a mineral resource area, which makes it impossible to construct and (or) operate underground structures not related to the extraction of minerals (paragraph 2 of the Rules).
The harm caused in the case under consideration was due to the depletion of mineral reserves extracted by the company for salt production. The replenishment of minerals by the natural environment does not exclude the obligation to compensate the damage to the state as the owner of the minerals in accordance with the methodology provided for these purposes.
The judicial panel of the Supreme Court of the Russian Federation also took into account that the company took measures to obtain a license for the use of minerals in a timely manner, but this circumstance does not refute the fact of unlicensed, i.e., unlawful use of minerals, which caused damage.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The person was granted forest land plots from the forest fund for construction and operation of oil field development facilities. During an inspection, a state forestry inspector discovered destruction of vegetation and unauthorized soil removal on disputed forest areas, which occurred during the elimination of consequences of a fire at the oil wellhead.
The Ministry of Natural Resources of the subject of the Russian Federation filed a lawsuit against the subsoil user to recover damages caused by the unauthorized removal, destruction, and damage to the soil.
In response to the claim, the subsoil user argued that the damage to the soil occurred due to force majeure - a fire, which he extinguished as quickly as possible, preventing further damage to the soil.
The decision of the first instance court, left unchanged by the decisions of the appellate and cassation courts, satisfied the claim.
The courts, in resolving the dispute, took into account the fact of destruction of vegetation and unauthorized removal of soil during the elimination of fire consequences on the disputed forest land. The courts did not find grounds for exempting the owner of the pipeline, which belongs to hazardous production facilities, whose operation is associated with increased danger to the environment, from the obligation to compensate damage caused as a result of the fire.
Owners of sources of increased danger, in accordance with the provisions of Article 1079 of the Civil Code of the Russian Federation, are obliged to compensate damage caused by such a source regardless of fault, unless they prove that the damage arose due to force majeure. The use by the person causing damage of a source of increased danger itself implies an obligation to bear the adverse financial consequences that arise from owning such a source, even when damage is caused accidentally, which encourages potential persons causing damage to invest more resources in preventing damage and increases standards of care and prudence.
According to paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 "On Application by Courts of Certain Provisions of the Civil Code of the Russian Federation on Liability for Breach of Obligations" (hereinafter - Resolution No. 7), in accordance with paragraph 3 of article 401 of the Civil Code of the Russian Federation, in order to recognize a circumstance as force majeure, it must be extraordinary and unavoidable under these circumstances. Accordingly, circumstances whose occurrence depended on the will or actions of the person causing damage cannot be recognized as force majeure.
Source: Overview of judicial practice on issues of application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)
The prosecutor filed a claim against the natural resource user for compensation of damage caused to the aquatic biological resources of the Russian Federation by fishing using prohibited fishing gear.
The court of first instance refused to satisfy the claim.
The court based its decision on the fact that the number of fish specimens seized did not exceed the quota obtained by the defendant on lawful grounds, and therefore there was no damage to aquatic biological resources.
Reversing the decision of the court of first instance and adopting a new decision to satisfy the stated claims, the appellate court based its ruling on the following.
The appellate court, based on the available evidence, including the verdict of the court in relation to the citizen found guilty of committing an offense under part 2 of article 253, part 1 of article 201 of the Criminal Code of the Russian Federation (hereinafter - the RCC), established that a citizen employed by the company as a ship captain carried out the exploitation of natural resources of the exclusive economic zone of the Russian Federation in the form of illegal harvesting of 29,264 specimens of chum salmon, 6,950 specimens of sockeye salmon, and 11 specimens of taimen using prohibited fishing gear for this type of catch - drift nets (gillnets) with imitation of traps on the surface.
In accordance with paragraphs 4 and 5 of part 1 of article 26 of the Federal Law dated December 20, 2004 No. 166-FZ "On Fishing and Conservation of Aquatic Biological Resources" (hereinafter - the Fishing Act), in order to ensure conservation of aquatic biological resources and their rational use, restrictions on fishing may be established, including the establishment of types and quantities of permitted fishing gear and methods of catching (fishing) aquatic biological resources; the size of mesh in fishing gear for catching (fishing) aquatic biological resources, as well as the size and design of fishing gear for catching (fishing) aquatic biological resources.
In accordance with article 50.2 of the Fishing Act, in order to ensure conservation of anadromous fish species (including, in particular, chum salmon, sockeye salmon, and silver salmon), the use of drifting nets is prohibited on migration routes to spawning grounds during industrial fishing of anadromous fish species in internal waters of the Russian Federation, in the territorial sea of the Russian Federation, and in the exclusive economic zone of the Russian Federation.
The use of prohibited fishing gear in the harvesting of aquatic biological resources violates environmental protection legislation and causes a negative change to the environment, which, under Articles 1064, 1068 of the Civil Code of the Russian Federation, Article 77 of the Environmental Protection Law, and Article 53 of the Fisheries Law, constitutes grounds for imposing on society an obligation to compensate for damage caused to the environment by its employee.
At the same time, the presence of a permit for harvesting (catching) aquatic biological resources, which is to be implemented in accordance with legislative requirements, and fishing within the allocated quota do not change the assessment of the committed violation as an impermissible interference with the environment causing it harm.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The Federal Service for Supervision of Natural Resources (Rosprirodnadzor) filed a claim against the pipeline owner seeking compensation for damage caused to the soil as a component of the environment.
Satisfying the claims in full, the first instance court, with which the appellate court agreed, based its decision on the following.
According to Articles 1 and 4 of the Law on Environmental Protection, objects of environmental protection from pollution, depletion, degradation, damage, destruction, and other negative impacts of economic and (or) other activities are components of the natural environment, natural objects, and natural complexes, including land, subsoil, and soil. At the same time, the law provides for the establishment of environmental quality standards and permissible impact standards on it, compliance with which ensures the sustainable functioning of natural ecological systems and preserves biodiversity.
Article 42 of the Russian Federation Civil Code stipulates that owners of land plots and persons who are not owners of land plots are obliged to use land plots in accordance with their designated purpose by means that should not cause harm to the environment, including land as a natural object, and should not allow pollution, depletion, degradation, damage, destruction of land and soil, and other negative impacts on land and soil.
According to paragraph 1 of Article 77 of the Law on Environmental Protection, soil pollution, degradation and destruction of natural ecological systems, natural complexes and natural landscapes may indicate damage to the environment and serve as a basis for compensation of such damage.
The Authority has proven the fact of soil contamination resulting from the respondent's industrial activities, since analysis of soil samples showed that the concentration of petroleum products was 32 times higher than background samples, and chloride ions were 175 times higher, i.e. negative impact on land and soils.
The absence of chloride ions in the list of pollutants for which state regulatory measures in the field of environmental protection are applied, approved by the Government of the Russian Federation's order dated July 8, 2015 No. 1316-r, does not by itself exclude the negative impact of this chemical element on the environment. Adverse ecological consequences may manifest after a long period, having a complex nature and exerting a negative impact simultaneously on several components of the natural environment.
The calculation of the damage caused to soils in monetary terms includes, among other things, determining the extent of damage resulting from soil pollution caused by the entry of pollutants into the soil, leading to non-compliance with environmental quality standards for soils. In this regard, the degree of contamination is taken into account, which depends on the ratio of the actual content of the pollutant in the soil to the environmental quality standard for soils (paragraphs 4 - 6 of the Methodology for calculating the extent of damage caused to soils as an object of environmental protection, approved by the order of the Ministry of Natural Resources and Environment of Russia dated July 8, 2010 No. 238).
In the absence of established environmental quality standards for soils (for a specific pollutant), the court applies the concentration value of this substance on adjacent territory with similar intended use and type of land use that is not subject to negative impact from this type of violation as the value of the environmental quality standard.
At the same time, the person causing damage is not deprived of the right to present evidence that the introduction of such a substance into the soil does not lead to changes in the physico-chemical composition of the soils and does not result in imbalance of the ecosystem as a whole or the occurrence of damages.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The prosecutor filed a lawsuit against the company demanding that it be required to develop a reclamation project for the land plot, perform actions for the reclamation of the land plot, and recover damages.
The court's decision partially satisfied the plaintiff's claims. The company was ordered to develop a reclamation project for the land plot and carry out the reclamation of the land in accordance with the approved project.
The appellate court, whose findings were agreed upon by the cassation court, overturned the court's decision and adopted a new decision ordering the company to pay damages in monetary form into the budget of the municipal district.
As follows from the case materials, as a result of the company's activities related to the neutralization and disposal of hazardous waste classes I - IV, the company repeatedly discharged hazardous waste class I containing the dangerous chemical substance mercury onto the soil of the land plot, which caused soil contamination on the land used by the company as well as on adjacent land plots.
According to Article 1082 of the Russian Civil Code, compensation for damage may be carried out through recovery of losses and (or) by imposing an obligation on the respondent to restore the disturbed state of the environment.
According to paragraph 1 of Article 78 of the Environmental Protection Law, the determination of the extent of damage to the environment caused by a violation of environmental legislation is carried out in accordance with projects for reclamation and other restorative works. In the absence of such projects, the damage is compensated in accordance with tariffs and methodologies for calculating the amount of damage to the environment.
According to the provisions cited above, the possibility of imposing on the respondent an obligation to restore the damaged state of the environment depends on the presence of a project for restorative works developed and approved in compliance with current legislation. A court satisfying a claim for compensation of damage in kind must be based on the relevant project and refer to it in the resolutive part of the decision. In the absence of such a project, the court issues a decision on compensation of damage in monetary form (paragraph 18 of Resolution No. 49).
Since a project of restorative works developed in compliance with the requirements of current legislation and approved was not presented during the consideration of the case, the appellate court made a justified decision to impose on the respondent the obligation to compensate the damage in monetary form.
Source: Overview of judicial practice regarding the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The prosecutor filed a claim requesting that the person be obliged to develop a reclamation project for a land plot contaminated with petroleum products.
The court's decision, left unchanged by the appellate court, has satisfied the claimant's demands.
Cancelling the judicial acts issued in the case and sending the matter for a new consideration, the cassation court noted the following.
Pursuant to paragraph 1 of article 77 of the Law on Environmental Protection, causing harm to the environment, manifested as a negative change in the environment resulting from its pollution, leading to degradation of natural ecological systems and exhaustion of natural resources, is a basis for holding an individual liable in terms of property responsibility.
The aim of liability for causing damage to the environment is achieving compensation and restoring its impaired condition; therefore, the claimant has the right to choose methods provided by article 1082 of the Russian Civil Code and article 78 of the Law on Environmental Protection when seeking judicial protection.
Taking into account the necessity of effective measures aimed at restoring the state of the environment as it was prior to the damage, and considering the public interest in a favorable state of the environment, the court, taking into consideration the positions of the parties involved in the case and the specific circumstances of the case, may apply a method of compensation for damage that best corresponds to the objectives and tasks of environmental legislation (paragraph 13 of the resolution of the Plenum No. 49).
Determining the method of compensating for damage—in kind or in monetary terms—primarily depends on the possibility of its compensation in kind, the timeliness of measures taken, and their effectiveness in restoring the disturbed state of the environment. In the absence of such circumstances, the court may choose a method of protection in the form of compensation for damage in monetary terms (recovery of damages).
At the same time, in accordance with paragraph 2 of Article 78 of the Environmental Protection Law, the possibility of imposing on the respondent an obligation to restore the disturbed state of the environment is subject to the availability of a restoration work project, developed and approved in compliance with the requirements of current legislation.
Thus, the possibility of imposing an obligation to restore the disturbed state of the environment is contingent upon the presence of the respondent's corresponding will expressed through voluntary actions aimed at carrying out necessary measures, confirmation of which is the development of a restoration work project by the time the court considers the case.
The restoration work project shall be assessed by the court, including with regard to the justification and sufficiency of the measures for restoring the disturbed state of the environment, as well as the objective possibility of their implementation by the respondent either through their own forces (if technical and other capabilities are available) or by involving third parties.
The mere imposition of an obligation on the respondent to develop a reclamation project for the land plot is not an appropriate method of compensating for damage to the environment, does not lead to the restoration of its impaired condition, and a court decision satisfying such claims will not meet the requirements of enforceability of the judicial act.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
On the leased agricultural land plot, the lessee removed and relocated the upper fertile soil layer.
In fulfillment of the order issued by the Federal Service for Veterinary and Phytosanitary Supervision (hereinafter - Rosselkhoznadzor), the person causing damage commenced the development of a reclamation project for the damaged land plot. Ten months after the issuance of the order, the Rosselkhoznadzor authority filed a lawsuit with the court demanding the lessee to carry out the reclamation of the disturbed land plot and seeking compensation for damages.
In response to the stated claims, the person causing damage argued that reclamation was being carried out; the technical stage, including covering the reclaimed area with a fertile soil layer, had been completed. At the time of filing the claim, the company had begun agricultural and phytosanitary measures aimed at restoring the fertility of the disturbed land.
The court's decision in the first instance, left unchanged by the appellate court's ruling, denied the claims of the authority, as damage caused to the environment is compensated in kind in accordance with established procedures.
The courts pointed out, citing the provisions of Article 78 of the Environmental Protection Law, that the person causing harm acted in good faith, having taken necessary measures to approve the reclamation plan: developed a land reclamation project and timely submitted it for approval to the local self-government body. At the same time, all necessary measures were taken to prevent further damage, pollution was eliminated, and reclamation had been initiated.
Additionally, the court noted that the existence of this judicial decision does not prevent the Federal Service for Veterinary and Phytosanitary Surveillance (Rosselkhoznadzor) from, in the future, if deadlines for reclamation established by the project are violated, bringing a claim to court for compensation of damage in monetary form.
In another case, as a result of an inspection conducted by the Federal Service for Environmental and Natural Resources Supervision (Rosprirodnadzor), violations were identified that caused harm to soil as a component of the environment, due to the placement by a municipal institution on a land plot of woody waste generated during work related to replacing greenery.
The decision of the first instance court satisfied the claims of the inter-district prosecutor regarding the obligation of the institution to take measures for the elimination of the dump located on the land plot and to carry out reclamation of the land plot in accordance with the approved project.
Subsequently, the Federal Service for Supervision of Natural Resources (Rosprirodnadzor) filed a lawsuit with the court requesting compensation for damage caused to the soil in monetary form.
The first instance court, noting that the order of compensation for damage had already been determined by an earlier court decision in another case according to Article 1082 of the Civil Code of the Russian Federation and Article 78 of the Law on Environmental Protection, which established the procedure for compensating damage in the form of restoring the disturbed state of the environment (through reclamation of the land plot), denied the claims.
The appellate court left the decision of the first instance court unchanged, noting the following.
The institution has been granted a six-month stay of enforcement of the court's decision, and this period has not yet expired. Furthermore, the institution submitted municipal contracts related to the remediation of the identified site of illegal waste disposal into the case materials, which indicates that the respondent is taking measures to comply with the court's decision. There are no evidences presented in the case materials indicating an avoidance of enforcement of the court's decision.
The inefficiency or insufficiency of the reclamation works, upon which the authority relied when filing a claim for compensation of damage in monetary form, and the presence of irreversible or difficult-to-recover ecological losses can only be assessed after the completion of reclamation, or, if such works have not been completed, after the expiry of the period set by the court for their conduct.
Having regard to the above, the claim by the administration for compensation of damage from the respondent in monetary form has been filed prematurely and cannot be satisfied. However, if subsequently, after the expiry of the reclamation period or in the event of improper performance of works, the administration files a claim for compensation of damage in monetary form, such a claim will be based on other legal and factual grounds, which excludes the identity of the claims.
Source: Overview of judicial practice regarding the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The Forestry Committee filed a claim with the court against the forest user seeking recovery of damage caused to the forest land in an amount calculated in accordance with paragraph 6 of Appendix No. 3 to Methodology No. 1730.
Without disputing the fact of the forest violation recorded in the inspection report, the company objected to the damage calculation performed by the committee, stating that it had already incurred expenses for eliminating the pollution.
The first instance court, having established that the party causing harm had fully completed work on localizing and eliminating the consequences of the incident, technical reclamation was carried out in full, and the forest area had been restored to a condition suitable for further use for its intended purpose "for operation of an inter-field pipeline," refused to grant the claim.
The appellate court's decision, left unchanged by the cassation court, overturned the first instance court's ruling and partially satisfied the claim.
As stated by the courts, eliminating the consequences of a violation of forest (land) legislation and compensating for damage caused as a result of this violation are independent actions. Restoring the disturbed state of the environment is carried out after the elimination of the consequences of environmental pollution and is not identical to this procedure.
According to paragraphs 8 and 8(1) of the Rules for Conducting Land Reclamation and Conservation, approved by the Government Decree of the Russian Federation dated July 10, 2018 No. 800 (hereinafter - Rules No. 800), land reclamation is carried out in accordance with an approved project through the implementation of technical and/or biological measures. Works related to the localization and elimination of spills are not included in either the technical stage or, even more so, the biological stage of land reclamation; that is, they are not considered reclamation works. Paragraph 12 of Methodology No. 1730 does not provide for compensation for such expenses.
Under the cleanup of oil and petroleum products spill is understood a set of works aimed at localizing the spill of oil and petroleum products, collecting spilled oil and petroleum products, terminating the action of characteristic hazardous factors, excluding the possibility of secondary pollution of the environment, as well as saving human lives and preserving human health, reducing the extent of environmental damage and material losses. Oil and petroleum products spill localization refers to a set of measures aimed at stopping the spread of spilled or leaking oil (spilled or leaking petroleum products) on the ground surface or water body, carried out by installing barriers, conducting earthworks, or using special equipment (paragraph 1 of the Rules for organizing measures to prevent and eliminate oil and petroleum products spills on the territory of the Russian Federation, excluding the internal waters of the Russian Federation and the territorial sea of the Russian Federation, approved by the Government of the Russian Federation Decree dated December 31, 2020 No. 2451).
Taking into account the above, the costs incurred by the person (for relocations of special equipment, localization of oil pollution, installation of drainage systems, preparation of work areas, cleaning of vegetation, installation of access roads, preparation and removal of contaminated soil to a sludge storage facility), included by the party causing damage in the stage of technical recultivation, are considered part of the procedure for eliminating the consequences of land contamination and, accordingly, are not subject to consideration when determining the amount of compensation for damage caused to the environment.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
As a result of the unauthorized connection to the pipeline, an oil spill occurred on two land plots. Since the pipeline owner did not voluntarily compensate for the damage, the Federal Service for Supervision of Natural Resources (Rosprirodnadzor) filed a lawsuit with a claim for monetary compensation for the damage caused to the soil as an object of environmental protection.
The first instance court, considering the provisions of Articles 1064 and 1079 of the Russian Civil Code, Articles 77 and 78 of the Law on Environmental Protection, and Methodology No. 1730, came to the conclusion that the person, being the owner of a hazardous production facility - an oil pipeline, is obliged to compensate for the damage caused to the soil as a result of the oil spill. The court rejected the arguments regarding the possibility of offsetting the costs incurred for restoring the condition of contaminated land plots. By overturning the decision of the first instance court and refusing to satisfy the claim, the appellate court noted that the pipeline owner committed actions aimed at eliminating the environmental damage through the reclamation of oil-contaminated land plots, and the costs incurred by him exceeded the amount of damage calculated according to the established methodology.
The cassation court overturned the decision of the appellate court and upheld the ruling of the first instance court based on the following.
In accordance with Article 1079 of the Russian Civil Code, legal entities and citizens whose activities are associated with increased risk to others are obliged to compensate for damage caused by a source of increased danger regardless of fault, unless they prove that the damage arose due to force majeure.
For this reason, the owner of an oil pipeline is liable for environmental damage caused as a result of unauthorized tapping into the pipeline by third parties (paragraph 8 of Resolution No. 49).
In paragraph 12 of Methodology No. 1730 it is established that when compensating for damage, expenses related to the performance of works carried out for land reclamation, afforestation (forest cultivation) and incurred by the person who caused the damage prior to the court's decision on compensation for damage resulting from the commission of an administrative offense or a conviction in an amount not exceeding the amount of damage to be compensated, shall be taken into account.
In accordance with paragraph 13 of Methodology No. 1730, expenses related to the performance of works on land reclamation carried out in order to eliminate damage and incurred by the person who caused the damage prior to the expiration of the term specified in paragraph 12 of Methodology No. 1730 shall not be taken into account when compensating for damage in cases where such works do not comply with the procedure for land reclamation, as well as the specific features of land reclamation on lands where forests are located and which have been contaminated or subjected to other negative impact provided for in part 4 of article 60.12 of the Land Code of the Russian Federation, or if acceptance of such works is carried out after the expiration of the term specified in paragraph 12 of Methodology No. 1730.
Land reclamation should ensure the restoration of land to a condition suitable for its use in accordance with its designated purpose and permitted usage. Completion of land reclamation works is confirmed by a land reclamation certificate, which is signed by the person responsible for carrying out the reclamation; such a certificate must include information about the work performed on the land as well as data regarding the condition of the land; no later than 30 calendar days from the date of signing this certificate, the person responsible for conducting the reclamation shall send a notice of completion of works with an attachment of a copy of the aforementioned certificate to the persons with whom the land reclamation project is required to be coordinated in accordance with paragraph 15 of these Rules, as well as to the Federal Service for Supervision in the Field of Natural Resources (paragraphs 5, 30 and 31 of Rules No. 800).
Taking into account the above, the basis for offsetting the costs incurred by the party causing damage for the removal of pollution against the amount of monetary compensation for the damage is the completion of a full set of works on the reclamation of the contaminated land plot aimed at restoring the disturbed state of the environment. Such an offset is possible only when measures are taken to restore the state of the environment, in particular, when there is an acceptance act of the work performed in full volume, and the results of inspection of the reclaimed land plots by the authorized body conducted in accordance with established procedures.
In this case, the results of these works were lawfully not accepted by the authorized body due to violations identified during their implementation and the necessity to repeat the works.
Taking into account that the party causing damage did not comply with the conditions for offsetting the reclamation costs against compensation for the damage, the court had no grounds for taking into account the corresponding amounts when issuing a decision.
Source: Overview of judicial practice on the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The prosecutor filed a claim against a citizen seeking compensation for damage caused to plant objects, citing the citizen's illegal harvesting of 2588 rhizomes of rose root - a plant listed in the Red Book of the Russian Federation and classified as an endangered species.
By a court decision, left unchanged by the appellate court, the prosecutor's claims were satisfied, and damage caused to plant objects was recovered from the citizen in the amount of 776,400 rubles, paid into the budget of the municipal district.
The amount of compensation for damage has been determined by the court taking into account the provisions of paragraph 1 of Article 78 of the Law on Environmental Protection and the Tax Tables for calculating the extent of damage caused to plant species listed in the Red Book of the Russian Federation, as well as their habitat due to violations of legislation in the field of environmental protection and natural resource use, approved by the order of the Ministry of Natural Resources of the Russian Federation dated August 1, 2011 No. 658.
Rejecting the citizen's argument regarding the need to reduce the amount of compensation for damage taking into account his financial situation, judicial authorities properly relied on the fact that the amount of compensation for damage caused to the environment by intentional acts must be fully compensated regardless of the legal status of the person causing the damage and cannot be reduced based on the financial position of the citizen (paragraph 1 of Article 77 of the Law on Environmental Protection, Article 1064, paragraph 3 of Article 1083 of the Civil Code of the Russian Federation, paragraph 12 of Resolution No. 49).
Source: Overview of judicial practice regarding the application of legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
The regional Forestry Department filed a lawsuit to impose an obligation to eliminate a track formed on a forested area as a result of the respondent's activities.
The court found that due to the movement of heavy transport vehicles on the forested area (outside the logging area), which has a strong negative impact on the soil, a track was formed, facilitating the accumulation of moisture during the spring-summer season and creating a threat of over-wetting of tree root systems.
Taking into account the provisions of Article 60.12 of the Forest Code of the Russian Federation, the Rules for Harvesting Timber and Specifics of Timber Harvesting in Forestry Areas and Forest Parks specified in Article 23 of the Forest Code of the Russian Federation, approved by the order of the Ministry of Natural Resources of Russia dated September 13, 2016 No. 474 (in force at the time of consideration of the case), and the Forestry Requirements for Technological Processes of Thinning Cuttings, approved by the order of the Federal Forestry Service of Russia dated November 29, 1993 No. 314, the court satisfied the claims submitted, imposing on the respondent an obligation to take actions to eliminate the track by covering it with soil and leveling the surface, and setting a deadline for the execution of the decision.
Since the plaintiff claimed claims for the recovery of court penalties in case of non-performance by the defendant of the court's decision within the established period, the court, taking into account the provisions of paragraph 3 of Article 206 of the Civil Procedure Code of the Russian Federation (hereinafter - the CPC RF), paragraph 4 of Article 174 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the APC RF), Article 308.3 of the Civil Code of the Russian Federation, explanations contained in points 28, 31, 32 of Resolution No. 7, recovered from the defendant a court penalty for each day of delay in performing the court decision in an amount corresponding to the principles of fairness, proportionality and inadmissibility of allowing the debtor to gain profit from unlawful or dishonest behavior.
In another case, the court recovered a court penalty from the defendant in the event of non-performance of the court's decision prohibiting the discharge of wastewater onto the terrain.
Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)
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