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Thứ Bảy, ngày 21/05/2022

Some new points about compensation for damages under the Draft Law on Environmental Protection (amended)

21/12/2020

    In the Constitution of the Socialist Republic of Việt Nam (2013), Article 63 stipulates that “Organizations and individuals that pollute the environment, deplete natural resources and weaken biodiversity shall be strictly dealt with and must be responsible for remedy and compensation for damages”. On the basis of the Constitution 2013, many other legal documents also stipulate the responsibility for remedy and compensation for damages caused by the acts which pollute the environment.

    According to current legal provisions in Việt Nam, compensation for damages caused by violation of the Law on Environmental Protection (LEP) is in the field of compensation for non-contractual damages. Therefore, the legal basis for settling claims for compensation for damages caused by violation of the LEP is firstly implemented in accordance with the Civil Code 2015’s provisions on compensation for non-contractual damages. Specifically, in the Civil Code 2015, Article 172 stipulates: “When exercising ownership rights and/or other property-related rights, the owner or the holder must comply with the provisions of LEP; if he/she pollutes the environment, the owner shall terminate the acts which pollute the environment, to take measures to remedy the consequences and to compensate for damages”. Article 602 stipulates: “Any entity polluting the environment, thereby causing damages, must compensate in accordance with the Law, including when the entity polluting the environment was not at fault”. Thus, the responsibility for compensation for environmental damages to individuals and organizations that pollute and degrade the environment has been stipulated by the Civil Code. According to these provisions, the entity that has the acts which pollute the environment while cause damages to others, must compensate for damages, including when the entity polluting the environment was not at fault.

    The LEP 2014 continues to affirm the legal basis of prosecution for compensation for damages caused by acts which pollute and degrade the environment in Clause 8, Article 4: “Any organization, family household or individual, who causes environmental pollution, incidents and degradation, is responsible for remedy, compensation for damages and assumes other responsibilities in accordance with legal provisions” and provides in details the compensation for damages in the field of environmental protection. The LEP stipulates damages caused by environmental pollution and degradation (Article 163); Principles of handling responsibilities of organizations, individuals polluting the environment (Article 164); Determination of damages caused by environmental pollution, degradation (Article 165); Determination of damages caused by deterioration in environmental function and productivity (Article 166); Liability insurance for compensation for environmental damages (Article 167).

    In addition to the above provisions, the responsibility for compensation for damages caused by violations of the law on environmental protection is also stipulated by a number of other relevant laws: Law on Land, Law on Minerals...

    After 6 years of implementation, besides the advantages, the provisions on compensation for damages have revealed a number of obstacles and shortcomings that need to be amended, supplemented and improved in the coming time. The provisions on compensation for environmental damages in the Draft LEP (amended) in item 2 from Article 136 to 141 include the following new points:

Adding the principle for determining responsibility for compensation for environmental damages such as: Each subject’s responsibility for compensation for environmental damages is determined according to the type of pollutants, the amount of emissions and other factors; The responsibility for payment of the costs of determining the damages and carrying out the procedures for claiming compensation for damages of each subject is determined corresponding to the rate of damages in the total damages to the environment; In case the damage rate of each subject cannot be determined, the costs of compensation for environmental damages must be equally divided among the subjects.

Identification of the subject responsible for determining the damages and claiming compensation for damages caused by deterioration in environmental function and productivity

    Responsibility for determining damages and claiming compensation for damages caused by deterioration in environmental function and productivity is stipulated as follows: Commune-level People’s Committees are responsible for claiming compensation for environmental damages in the localities under their respective management. In this case, commune-level people’s committees are responsible for requesting the district-level people's committees to collect and verify data and evidence to determine environmental damages; district-level people's committees are responsible for determining damages and claiming compensation for environmental damages caused in the area from two or more communes, wards and townships; provincial-level people's committees are responsible for determining damages and claiming compensation for environmental damages caused in two or more districts, towns and provincial cities; the Ministry of Natural Resources and Environment (MONRE) is responsible for determining damages and claiming compensation for environmental damages caused in two or more provinces or centrally-run cities.

    Organizations and individuals suffering damages to human life, property, health, legitimate property and interests caused by deterioration in environmental function and productivity, on its own or may authorize state agencies; social and political organizations to determine the damages and claim compensation for environmental damages in accordance with this Law and other relevant laws.

Provisions on order and procedures for claiming compensation for environmental damages

    To effectively implement compensation work, the Draft LEP (amended) stipulates that the National Assembly authorizes the Government to specifically guide the order and procedures for claiming compensation for environmental damages. Accordingly, the procedures for compensation for damages are expected to include as follows: Notice of environmental damages; Procedures for receiving notifications of environmental damages; Select a service provider to collect data and evidence, calculate damages and determine responsibility for compensation for damages; Determine the types of data and evidence necessary to calculate environmental damages; Methods of calculating damages; Determine the costs of compensation and claim compensation. In addition to the processes and procedures, the Government will provide guidance for implementation with attached forms and documents.

Determination of damages caused by environmental pollution, degradation includes the following contents: Determining the scope, area and location of the polluted or degraded environment; Determining the number of environmental components degraded, types of ecosystems and species damaged; Determining the level of damages to each environmental component, ecosystem and species.

Forms of settlement of compensation for environmental damages: Compensation for environmental damages is settled through the following forms: Agreement between the parties; Reconciliation; Request to arbitration for settlement; Lawsuit in court. The lawsuit in court shall comply with the Civil Procedure Code’s provisions on compensation for non-contractual civil damages, except proving the causal relationship between the acts of violating the Law on environment and the damages occurred under the responsibility of the violating organizations or individuals, polluting the environment.

Costs of compensation for environmental damages: Costs for determination of damages; Costs for organization to respond to environmental incidents. Costs of compensation for damages are directly paid by organizations or individuals or paid to the Environment Protection Fund for payment.

Determination of damages caused by deterioration in environmental function and productivity: Adding a new article is that the costs for determination of damages shall be paid by the compensation party.

Assoc. Prof. Dr. Phạm Văn Lợi - Director General

                       Environmental Science Institute (VEA)

(Nguồn: Bài đăng trên Tạp chí Môi trường số Chuyên đề Tiếng Anh III/2020)

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