November 10, 2023
by Aura Iurascu
Wondering what a waste management crisis looks like? The Campania region (Italy) experienced one for 15 years. Official orders of the mayors of Caserta and San Nicola La Strada described the acute phase of the crisis as a serious situation caused by massive heaps of waste piling up in the streets that had impaired pedestrian and vehicular traffic and produced unbearable miasmas spreading throughout the entire municipality and where fires had been lit to burn waste, resulting in the release of dioxin. A situation that postponed the resumption of all educational activities, including kindergartens, schools and universities, suspended several local markets and required waste removal from the streets to temporary storage areas.
13 years following the final domestic appeal, the European Court of Human Rights (ECtHR, the Court) delivered its ruling and condemned Italy for violating Article 8 of the European Convention on Human Rights (ECHR). This comment briefly examines the main facts and the Court’s evolving interpretation of Article 8 (right to private and family life) concerning the link between human rights and environmental protection.
The case concerns 19 residents of the Campania Region, living in the provinces Caserta and San Nicola La Strada (Italy), who brought an action before the ECtHR for violations of Articles 2 and 8 of the ECHR. The breaches were caused by the authorities’ poor management of the waste collection, treatment and disposal services in the Campania region and their failure to take protective measures to minimise or eliminate the effects of pollution from a landfill site called “Lo Uttaro,” located in the municipalities where the applicants lived.
In particular, from 1994 until the end of 2009, the Campania Region was in a state of emergency due to severe problems with municipal waste disposal, reaching its highest peak between 2007 and 2008, as described in the introduction. The facts related to the regional waste disposal plan and the work of the public entities to award the concession contract and operate the waste management in the Campania Region were already described in a previous judgment, Di Sarno and Others v. Italy. (A concession contract is a contract that follows a public procurement procedure in which economic operators – waste management companies in this case – bid to win the contract.)
The end of the state of emergency was declared with a legislative act that concomitantly set out urgent measures to cope with the waste crisis. Subsequent legislative acts mandated the construction of power plants, new waste treatment and disposal facilities, the enactment of measures concerning food safety and the adoption of an emergency action plan for the waste to be processed.
In addition to the regional waste management through public tenders, the in-charge commissioner for the emergency considered alleviating the waste crisis by using privately owned waste disposal plants in the so-called “Lo Uttaro” area. An inspection of the “Lo Uttaro” area revealed that the place was absolutely unsuitable for a waste disposal plant; it was affected by extremely serious environmental pollution, leading to a predictable environmental disaster, and the plant operating back then differed substantially from the project authorised in the 1980s.
This discovery led to permanent safety measures being ordered without delay. However, said measures were never born through. Moreover, the Regional Agency for Environmental Protection for Campania Region recommended refraining from using groundwater for human, agricultural and breeding consumption, adopting safety measures and removing the disposed hazardous waste. Until 2020 (the time of the last observations received by the Court), the contaminated area “Lo Uttaro” has not been remediated, nor have safety measures been implemented, leading to the present action in 2010.
The ECtHR’s reasoning was based on two sharp distinctions: a) the municipal waste management issue, temporally divided between the crisis period (1994-2009) and the subsequent period (2010-2020), and b) the authorities’ responsibilities in the “Lo Uttaro” area.
Concerning municipal waste management, the applicants claimed that the authorities failed to manage the crisis and that the waste piled on the public roads constituted an illegitimate interference with their right to private and family life under Article 8. The respondent Italian Government acknowledged the applicants’ complaint until the end of 2009.
Regarding the authorities’ responsibilities in the “Lo Uttaro” area, the applicants highlighted that the violations also continued after the end of the state of emergency as the “Lo Uttaro” area had still not been remediated in 2020. On the other hand, the Government argued that, after the end of the crisis, waste management had improved significantly.
The ECtHR began its assessment by reiterating the general principles under which severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (para. 120).
The ECtHR observed that Article 8 does not only compel the State to abstain from arbitrary interference (negative undertaking) but can lead to positive obligations inherent in effective respect for private or family life. Notably, in the case of dangerous activities, States must set regulations geared to the special features of the activity in question, particularly concerning the level of risk potentially involved. They must govern the licensing, setting up, operation, security and supervision of the activity. They must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks posed by the activity (para. 123 and 124).
In applying such principles to the first issue, namely the issue of municipal waste management, the Court did not question the multiple studies brought by the applicants assessing that the mortality risk and the risk of other diseases were higher in the areas of the municipalities of Caserta and San Nicola La Strada. Also, while nutrition and smoking habits might influence the mortality rate, the existence of a causal link between exposure to waste treatment and an increased risk of developing pathologies was not contested. The pollution from the waste management crisis necessarily caused damage to the applicants’ health, making them more vulnerable to illnesses (para. 127). Thus, their everyday life was affected during the entire state of emergency, with the acute phase being between 2007 and 2008, and the Italian authorities failed in their positive obligation to protect the applicant’s right to respect for their private life and home. However, regarding the period following the state of emergency, the ECtHR held a different opinion. It observed that the applicants did not demonstrate to what extent the shortcomings of the waste management in the area had a direct impact on their home and private life, concluding that there was no violation of Article 8 for this following period (para. 136).
Regarding the “Lo Uttaro” area, the Court held that the landfill site continued to cause environmental damage to the groundwater and atmosphere (para. 142). This posed a risk to public health. By 2020, the projects were not fully implemented, nor had the related works been carried out within a clear time frame, continuing to harm the environment and endanger human health (para. 147), thus violating Article 8 of the Convention. The remaining complaints were dismissed.
The Locascia case is again proof of Article 8’s evolving interpretation in the case law. As the Manual on Human Rights and the Environment clarifies, neither the Convention nor the European Social Charter are designed to provide general protection of the environment as such and do not expressly guarantee a right to a safe, clean, healthy and sustainable environment. Regarding the right to respect for one’s home and private life enshrined in Article 8, adverse environmental factors could directly affect human health. Thus, the Locascia case was correctly included under the umbrella of Article 8 for two series of environmental damages with severe consequences on human health: poor waste management (from collection to disposal) and poor management of the environmental risks deriving from a polluted site.
It is worth noting that the applicants were not requested to demonstrate being affected by any pathologies linked to the waste exposure. The scientific studies submitted by the parties have been the foundation of the Court’s reasoning.
As the ECtHR observed in other judgments (Cordella et al. v. Italy and Fadeyeva v. Russia), for an issue to arise under Article 8, the environmental factors must have a directly harmful effect on or seriously risk undermining the Article 8 rights of individuals. The Court must establish a causal link between the activity and the negative impact on the individual and the attainment of a certain threshold of harm by the adverse effects. The minimum threshold depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the applicants, as well as on the general environmental context.
In Locascia, the causal link was retrieved in the several studies conducted, contrary to the previous case concerning the same waste crisis, Di Sarno and Others v Italy, where the studies submitted reached opposite conclusions, resulting in the non-establishment of a causal link. In fact, in Di Sarno and Others v Italy, the ECtHR held that it could not conclude that the large quantities of waste piled up on the public roads threatened the applicants’ lives or health, despite the fact that judgment C-297/08 of the Court of Justice of the European Union had already stated that it did. Moreover, the Di Sarno case did not concern a direct interference with the applicants’ right to respect for their home and their private life but rather the alleged failure of the authorities to take adequate steps to ensure the proper functioning of waste management. In the case under scrutiny instead, the Court considered that the environmental nuisance that the applicants experienced during their everyday life affected, adversely and to a sufficient extent, their private life during the entire state of emergency. Additionally, the Court found also that the authorities failed in their positive obligation to take necessary measures to ensure effective protection of the applicants’ rights to respect for their home and private life.
Nevertheless, the Court’s statement of non-violation of Article 8 concerning municipal waste management after the state of emergency (from 2010 onwards), leaves a bit of a bitter taste in the reader’s mouth considering the positive excursus of the case. Did the waste disappear on January 1st 2010? Not really. Data received in 2020 reported more than 4 million tonnes of waste in the region waiting to be treated. Moreover, a parliamentary report stated that the issue of stored waste is destined to produce its effects in an amplified and progressive way in the next years and will reach its peak…in fifty years. These concerning numbers are accurately provided in the judgment itself. Isn’t this a proof of failure of a positive obligation of the State? Certainly, the scientific studies provided by the applicants have allowed judges to argue in favour of a causal link and develop a more nuanced interpretation of the connection between environmental issues and human health, during the state of emergency. Unjustifiably, the relevance of those same studies seems to have been watered down for the second timeframe (2010-2020).
Human rights and environmental protection are closely interconnected. The ECtHR acknowledges it and pays particular attention to its intertwined dynamics. In an era where environmental degradation of matrices and excessive production and consumption directly impact human health and the enjoyability of private life, the case can have a concrete impact on future cases. Mainly due to the fact that the domestic remedies at their disposal had not been adequate and effective in containing the effects of the environmental damage, and the later administrative and legislative interventions have somehow been inconclusive in providing concrete and timely protection of citizens’ rights. However, the judgment is delivered only one year after incorporating environmental protection as an Italian Constitutional principle, explicitly referring to the relevance of future generations.