APRIL 1 — As an environmental law practitioner in Malaysia, I laud the positive statements made recently by the Malaysian Government on having a re-look at the environmental laws in Malaysia as currently legislated.

In particular, I am encouraged by the statement by the Energy, Science, Technology, Environment and Climate Change Minister Yeo Bee Yin that the law shake-up would involve incorporating a new scheme to make polluters pay for clean-ups and damages to the environment that arise as a result of the pollution.

Evidently, damage to our environment is real, and so would be the costs of reparation.

The concept of polluter pays principle (PPP) is not new, and has been conceived as one of the fundamental principles governing modern environmental law and policy, behind most of the regulations imposed on potential polluters affecting land, water and air. It is usually used as a liability and compensation mechanism. However, the PPP carries varying interpretations which differences ought to be considered as it would bear wider implications in justifying liability for pollution, as well as making the same effective insofar as the aim is concerned.

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What would be ideal is for the government to undertake a careful and considered evaluation and analysis of environmental laws in various countries incorporating PPP in their laws such as Canada. The Ministry of the Environment, Conservation and Parks of Canada has broad powers to order to the person or company who owns or controls a contaminant to clean up any environmental damage. The Ministry can also order the current owner or previous owner of the property to do the clean-up.

Various issues ought to be considered properly including chain of responsibility particularly whether the parent company could be liable to pollution caused by subsidiary companies, as well as the impact of such orders on companies that ultimately go bust. In the latter case, the inter-play with insolvency laws have to be structured well in order to optimise the effectiveness of the law. In respect of the former, reach of the Ministry’s powers would have to be clarified. Can and should directors and officers be personally liable and to what extent? Can the Ministry order compensation regardless of fault?

Clarity of the law would also be critical to assure businesses that as long as they comply and abide by the law, there should be no fear of any ill-treatment.

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In conjunction with the specialised courts hearing environmental law matters in both civil and criminal jurisdictions which have been introduced gradually since 2012, the new laws on PPP should encourage greater and an increased level of environment management activities in businesses as well as members of the public which would in turn lower both damage to our environment, and the public’s costs in repairing the damage.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.