Health, Environment and Economic Interests: From Balancing to Ensuring Effective Remedies

Balancing health and environment against economic interests – production but also employment – is a big conundrum for national, European and international courts and politics. It seems a ‘tragic choice’ to deal with. The Ilva case is the symbol of an environmental disaster that offers an opportunity to delve into several sensitive issues. Part I will address, firstly, the possible methods and limitations of balancing constitutional rights in the Italian legal system, drawing on the flexible and dynamic nature of the hierarchy of legal values. Secondly, it will address the role of effective judicial protection of the right to health and environment, taking into consideration access to justice and effective remedies, as the European Court of Human Rights (ECtHR) pointed out. Part II will focus on the role of civil liability in restoring damages where no effective prevention is feasible. While focusing on the unilateral prevention of accidents and the irrelevance of a regulatory compliance defence, the paper will contend that ‘reflected’ environmental damages should be granted compensation through a strict rule of liability. Finally, the paper will articulate some policy remarks as to the most effective model to regulate environmental disasters.