La Terra dei Fuochi case: European Court of Human Rights rules on large-scale environmental damage

On 30 January 2024, the European Court of Human Rights (“ECtHR” or the “Court”) ruled that Italy's failure to diligently deal with systematic, decade-long, widespread, and large-scale pollution phenomenon in the Campania region (“Terra dei Fuochi”) and to take all steps required to protect the applicants’ lives violates Article 2 of the European Convention on Human Rights (the “Convention”).

Key Takeaways

• Failure to remedy timely and effectively large-scale environmental damage breaches human rights: Italy's lengthy delay in responding to the Terra dei Fuochi crisis, despite early awareness, resulted in ineffective measures that the Court condemned as a human rights breach due to the State's failure to protect public health and the environment. Italy has been ordered to take general remediation measures within a 2-year period. 
• Focus on public access to environmental information: The Court criticised Italy for withholding crucial environmental information under state secrecy until 2013, stressing the need for transparency to empower communities with the knowledge needed to navigate health risks.
• Associations were denied victim status by the Court, as the pollution's health risks affected individuals directly. The Court adhered to its precedent that associations require explicit authority to represent members in such cases and distinguished its holding in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland on State’s failure to tackle climate change (see our previous blog post).
• Potential impact in cases against corporates: Similarly to recent climate change litigation cases, claimants discussing corporate environmental duties are likely to invoke the ECtHR’s case law against States.

Background

The ECtHR application was filed by 41 Italian nationals living in the Campania Region and five organisations based therein. The applicants all asserted that they had suffered directly or indirectly from the effects of illegal waste disposal in the Terra dei Fuochi region, which refers to a territory between the province of Naples and the south-western area of the province of Caserta. This zone has a population of about 2,900,000 inhabitants (i.e., 52% of the population of the region of Campania) and spans ninety municipalities affected by illegal waste disposal practices. These included the illegal dumping, burying or burning of waste (including hazardous waste) on private land, often managed by organised crime groups, taking place since the 1980s in the southern part of Italy.

The Terra dei Fuochi phenomenon has been known to the Italian authorities at least since 1988. The Italian Parliament has been aware of the large scale of the issue since 1997 when an informer (collaboratore di giustizia) was heard; his statements were classified as a state secret and were ultimately only released to the public in 2013.

Prior CJEU infringement proceedings

Over the years, the European Commission brought two actions for non-compliance (the first one in 2005 and the second one in 2008), and the Court of Justice of the European Union (“CJEU”) found Italy non-compliant with provisions of EU law in relation to hazardous waste tips (Case no. C-135/05) and concluded that there was a “structural deficit in terms of the installations necessary for the disposal of the urban waste produced in Campania" (C-297/08). 

Given Italy’s failure to adopt all the measures necessary to comply with the judgment in Commission v. Italy (Case C‑297/08), the European Commission brought a further action for non-compliance and, on 16 July 2015, the Court of Justice (C-653/13) recognised Italy’s violation of Art. 260 para I of the Treaty on the Functioning of the European Union (EU). According to the Court of Justice, these violations were particularly serious as they directly endangered human health and harmed the environment.

ECtHR’s conclusions

Inadmissibility of associations’ claims 

The Court declared the claims of the applicant associations inadmissible. It adhered to its established jurisprudence that in assessing whether associations can be considered victims of a Convention violation, a breach of rights under Articles 2 and 8 necessitates a failure by the State to protect the life and health of the associations' members. However, since the complaint is about health risks from pollution, affecting only natural persons, the Court held that associations were not “directly affected” by the alleged violations.

The Court acknowledged the public watchdog role of associations but reiterated that where an applicant association relies exclusively on the individual rights of its members without showing it has itself been substantially affected in any way, it cannot be granted victim status under a substantive provision of the Convention.

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, where the ECtHR  ruled that Switzerland’s failure to implement sufficient measures to combat climate change violated human rights (see our previous blog post), associations were granted legal standing due to “specific considerations relating to climate change” and “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context” and limited to “this specific context” (Verein, §§498-499). 

In the present case, the Court decided that it was plainly not concerned with climate change and that it could not discern any other “special considerations” or “exceptional circumstances” which would lead it to grant standing to the associations to act on behalf of their members without explicit authority. 

Italy’s lack of timely and effective action breaches Articles 2 and 8 of the Convention

While the Convention does not expressly protect the right to a healthy environment, the ECtHR has developed its case law in environmental matters on account of the fact that the exercise of certain Convention rights may be undermined by the existence of harm to the environment and exposure to environmental risks, especially with respect to the right to life (Article 2) and respect for private and family life and home (Article 8) (see the Court’s factsheet on environmental cases).

The common thread throughout the decision of the ECtHR is the Italian State's inaction in addressing the Terra dei Fuochi issue in a timely and effective manner, in breach of Article 2. The Court considered that it did not need to review potential breaches of Article 8, having already concluded a breach of Article 2. 

The Court specifically reviewed all measures taken by the Italian authorities to resolve the Terra dei Fuochi situation throughout the years, reaching the conclusion that they were insufficient, inadequate and/or ineffective where they existed. As an overarching argument, the Court highlighted with concern that the first comprehensive measure aimed at understanding and addressing the pollution issue was only enacted in December 2013, while the authorities were aware of key aspects of the problem since the early 1990s and the full extent of the phenomenon at least from the early 2000s.

The Court also emphasised a severe and conscious lack of information to the public: the information about the systematic practices of burying and dumping hazardous waste was covered by state secrecy and made available to the public only in 2013. The Court stressed the need for affected members of the public to be informed of information key for their health and questioned the duration and existence of a true public interest for such a restrictive measure.  

Article 46 pilot-judgement procedure

Pursuant to Article 46 of the Convention, the ECtHR’s rulings are directly binding on the State that was party to the proceedings. Italy is therefore obliged to take all the appropriate measures to put an end to the violation of Articles 2 and 8 of the Convention, under the supervision of the Committee of Ministers of the Council of Europe.

In addition, in the present case, the persistent Terra dei Fuochi pollution issue, systemic deficiencies in Italy's response, and the urgent need for redress for affected individuals prompted this pilot-judgement procedure under which the Court may identify clearly structural problems underlying breaches of the Convention and indicate measures to be applied by the State to remedy them. 

In its decision, the Court provided detailed guidance for general measures to be taken in respect of the issue:

• Develop a comprehensive strategy: State authorities should collaborate with stakeholders to formulate a comprehensive plan addressing pollution, encompassing identifying affected areas, assessing contamination levels, managing risks, and investigating health impacts. Any such strategy must contain clear timeframes for implementation in the short, medium and long term and the identification and allocation of the resources required to the relevant State actors.
• Establish an independent monitoring mechanism: the authorities should set up an independent system to monitor the strategy's implementation and assess compliance with set timeframes.
• Create a public information platform: a centralised, publicly accessible platform should provide structured information on the Terra dei Fuochi problem and actions taken, regularly updated with implementation statuses.

These measures must be enacted within two years. 

The Court paused all similar cases against Italy for two years, until necessary national measures are adopted, for applications not yet notified to the Government.