Historical Pollution: In Search of a Legal Definition

The chapter introduces and investigates the concept of “historical pollution” in the context of environmental law. The subject is complex, as the principal consideration in our analysis concerns the role of time in the causation of harmful consequences (both for the environment and human health), notably in view of the prolonged timeframe that separates the conduct (pollution) and the effect (contamination). The phenomenon under scrutiny has significant implications for both the legal and the social fields. Indeed, legal enforcement of putative crimes against the environment is generally ineffective precisely because of this temporal factor, and this also has consequences for social perceptions and the dynamics of victimization. Yet these considerations could also contribute to a definition of historical pollution, as— given the complexity and uncertainties that surround the phenomenon—they suggest ways in which material cases could be used to frame a general understanding of the concept. Attention here is focused on pollution related to industrial activities since such cases are prominent in the field. The proposed definition strives to establish a general framework within which domestic analyses can be located, consistent with the particularities of each legal system. It represents one of the first steps into the unexplored terrain of historical pollution.