Responsibility for Damage to the Surface Layer of the Land: Problems of Jurisprudence in the Russian Federation

Malakhov Aleksandr Valentinovich Lecturer, Department of Labor and Environmental Law, Law School, Far Eastern Federal University 690922, Russia, Primorsky Krai, Vladivostok, Russian island, Ajax, 10 malakhov.av@dvfu.ru Sergeeva Ksenia Alekseevna Student, Department of Constitutional and Administrative law, Law School, Far Eastern Federal University 690922, Russia, Primorsky Krai, Vladivostok, Russian island, Ajax, 10 kseniyasergeeva2003@yandex.ru

Yurtaev Vyacheslav Aleksandrovich Student, Department of Constitutional and Administrative Law, Law School, Far Eastern Federal University 690922, Russia, Primorsky Krai, Vladivostok, Russian island, Ajax, 10 vya4eslav.yurtae@yandex.ru

The ecological catastrophe is one of the global problems of mankind. Oil spills, waste dumping in an undeveloped place, pollution of rivers and forests – all this has a negative impact on the environment around us. Article 9 of the Constitution of the Russian Federation (hereinafter referred to as the Constitution of the Russian Federation) indicates that land and other natural resources are used and protected in the Russian Federation as the basis of the life and activities of the peoples living on the relevant territory. Therefore, special attention should be paid to one of the most important production values of the world community and, in particular, the Russian Federation – the soil.

According to the position of the Constitutional Court of the Russian Federation, a negative impact on any of the components of the ecological system (including the soil) entails a violation of intra-system connections, thereby harming the ecosystem as a whole (Resolution of the Constitutional Court of the Russian Federation of 02.06.2015 N 12-P "In the case of checking the constitutionality of Part 2 of Article 99, Part 2 Article 100 of the Forest Code of the Russian Federation and the provisions of the Decree of the Government of the Russian Federation "On calculating the amount of damage caused to forests as a result of violation of forest legislation" in connection with the complaint of the limited Liability Company "Zapolyarneft"). It is impossible to deny that the rate of degradation of the earth's surface layer is progressing. A decrease in yields, the lack of a proper level of motivation for land users to ensure their reclamation and economic structure, or a lack of material and technical base to perform the necessary actions to preserve and improve the condition of the land entails the absence of the necessary volume of products produced directly on the soil.

  However, do not forget about the importance of regulatory regulation, namely, state land control. Despite the protective measures taken by States, the condition of the surface layer of the earth is deteriorating every day, which casts doubt on the effectiveness of the types of liability implemented for offenses related to causing damage to the soil. This allows us to conclude that there is a gap in the legislation, which causes the above consequences.

  In view of the above, the problem outlined in this paper is undoubtedly relevant. We will consider the main types of liability for causing damage to the surface layer of the earth on specific examples from judicial practice and evaluate their applicability and effectiveness (that is, the rationality of soil protection), as well as formulate proposals aimed at improving legal regulation in this area.

  Before considering the practical aspect of the topic taken into account, we will designate the concept and types of responsibility in land legal relations.

  Legal responsibility is a legal relationship, the purpose of which is to protect the rule of law, the parties to which are the state in the person of the relevant state authorities and persons with official powers and the direct offender ^{[1, p. 217.]}.

  The Land Code of the Russian Federation (hereinafter referred to as the RF Land Code) in paragraph 1 of Article 74 establishes that a person guilty of committing a land offense is administratively or criminally liable in accordance with the procedure established by law; in Article 75, the conditions for disciplinary liability are defined; in Article 76, liability for damage resulting from the commission of land offenses (Land the Code of the Russian Federation of 25.10.2001 N 136-FZ).

  Thus, it is possible to distinguish the following types of liability in land legislation on a material basis:

1) civil law,

2) administrative (in particular, Articles 7.1, 8.6, 10.9 of the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation),

3) criminal (such compositions as art. 254, 246, 167, 231, 260, 249, 255, 260, 261 The Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation),

4) disciplinary (for example, Article 192 of the Labor Code of the Russian Federation (hereinafter – the Labor Code of the Russian Federation) ^[2],

5) land law (compensation for damage resulting from the commission of a land offense (Articles 44-48, 50, 51, 54, 76 of the CC RF, Articles 235, 284-287 of the Civil Code of the Russian Federation) ^[3].

  We will analyze those types of responsibility that are directly related to the subject of our study.

  Administrative responsibility is of great importance in determining the amount of damage caused to lands, in particular, if they are not used for their intended purpose (for example, Articles 8.6, 8.8 of the Administrative Code of the Russian Federation). But there are also more specialized norms, for example, Article 8.7 of the Administrative Code of the Russian Federation provides for administrative liability for failure to fulfill obligations for land reclamation or mandatory measures to improve land and soil protection.

  By land reclamation, the legislator understands measures to prevent land degradation and (or) restore their fertility, that is, maintaining or improving land in a condition suitable for their use in accordance with the intended purpose and permitted use. Such measures include restoration of soils after pollution and their fertile layer, support of land quality in accordance with environmental quality standards and legal requirements, and others (Clause 5 of Article 13 of the RF CC) (Decree of the Government of the Russian Federation of July 10, 2018 N 800 "On land reclamation and conservation" (with amendments and additions) / Access from the SPS "Garant").

Let's also consider the composition of Article 8.2 of the Administrative Code of the Russian Federation and the related Article 247 of the Criminal Code of the Russian Federation. Federal Law No. 89-FZ of 24.06.1998 "On Production and Consumption Waste" establishes the need for storage, disposal, disposal of waste at facilities intended for this purpose and within the limits of their impact on the environment ^[19].

In judicial practice, reverse situations often occur. Without legal grounds, in order to make a profit, citizens place, store, neutralize, etc. production and consumption waste on land plots not equipped for these purposes, which in a particular case contained a fertile layer of soil. The guilty party was obliged to pay a fine (Sentence no. 1-13/2020 1-237/2019 dated October 26, 2020 in case No. 1-13/2020). This does not exempt offenders from liquidating the landfill ^[7], however, we have not established a clear mechanism for compensating such damage by the forces of the perpetrator.

  In addition, there are no clear criteria for determining this type of responsibility and specifics. In this regard, there are disagreements in law enforcement practice, unjustified bringing of persons to administrative responsibility for causing damage to the soil or, on the contrary, excessive leniency in relation to harm caused to the environment. We consider it necessary to develop specific chapters in the acts on administrative offenses both at the level of the Russian Federation and at the level of the subjects of the Russian Federation in order to increase their significance in the current conditions.

  Land and legal liability is a type of legal liability for offenses in the field of land protection and use ^[4]. To assess such damage, the Order of the Ministry of Natural Resources and Ecology of the Russian Federation "On approval of the Methodology for calculating the amount of damage caused to soils as an object of environmental protection" (as amended on 11/18/2021) is in effect.

  Currently, waterlogging of soils (77.12% of the total number of soils), their waterlogging (10.78%), flooding (3.37%) and complete flooding (2.95%) and other negative trends are widespread. Rosreestr of the Russian Federation notes that the main reason for the decrease in fertility is precisely technological (operational) degradation of soils ^[5], which means the lack of proper effectiveness of measures taken to support the permissible state of soils by land users.

  In addition, the damage caused to soils as an object of environmental protection is often not fully reimbursed (it is possible to compensate for the damage with money or "in kind" – restoration by reclamation (Article 78 of the Law on Environmental Protection). Let's look at these methods using examples from law enforcement practice.

  Let's turn to case no. A50-23706/2020. According to the inspection data of the Rosprirodnadzor Department, a leak near a well with sewage caused an excess of the permissible concentration of potassium and sodium in the soil, in connection with which the amount of damage to the soil was estimated at 1.8 million rubles, which was confirmed by a court decision. However, the courts, as a result of the appeal, concluded that the presence of these substances in the soil does not mean its contamination.

  In our opinion, it is obvious that the soil is a component of the natural environment, and any human intervention in this mechanism entails irreversible consequences.

  Even at the international level, the Food and Agriculture Organization of the United Nations understands by soil pollution the presence in the soil of a substance that has an adverse effect on any organism in it ^[6]. A significant excess of sodium and potassium in the soil, even if they are not included in the List of pollutants ("List of pollutants for which state regulation measures in the field of environmental protection are applied" (Decree of the Government of the Russian Federation No. 1316-r of July 8, 2015)), does not mean a favorable effect (or lack thereof) on the surface layer of the earth; a substance not included in the list, but contained in the soil in unacceptable quantities, can lead to degradation not only of a specific land plot, but also of the natural ecological system as a whole. We consider it necessary to agree with the decision of the first instance and establish that the conclusion of the appellate and cassation instances is based on an incorrect interpretation of the legislation (in particular, the said Decree of the Government of the Russian Federation) (Decision of the Seventeenth Arbitration Court of Appeal of August 11, 2021 in case No. A50–23706/2020).

  However, the question of the effectiveness of compensation for damage to the soil remains open. Compensation "in kind" is allowed only if there is a restoration project that meets the requirements of the legislation of the Russian Federation (paragraph 2 of Article 78 of the Law on Environmental Protection). In the absence of such, the court makes a decision on compensation for damage in monetary form (Resolution of the Plenum of the Supreme Court of the Russian Federation of November 30, 2017 N 49 "On some issues of the application of legislation on compensation for damage caused to the environment").

  An example of the first method is case No. A37-817/2017, in which the way of reproduction of aquatic biological resources, planning and implementation of compensatory measures to compensate for damage caused to aquatic biological resources and their habitat by the construction and commissioning of hydroelectric power plants (in other words, restoration of the fish population in the river) was chosen as a coercive measure (Resolution of the Sixth arbitration Court of Appeal in case No. 06AP-950/2018 of 29.05.2018).

  The choice of monetary compensation by the court, as already mentioned above, is also often found in judicial practice.  For example, in case No. A41-18635/2017, it is indicated that land reclamation does not fully compensate for harm in the sense given to this concept by paragraph 1 of Article 1064 of the Civil Code of the Russian Federation and paragraph 3 of Article 77 of the Law on Environmental Protection (Ruling of the Supreme Court of the Russian Federation dated December 24, 2015 No. 457-PEC15). Therefore, along with land reclamation, the guilty person is obliged to compensate for the damage caused in monetary form (Decision of the Arbitration Court of the Moscow Region of 24.10.2018 in case No. A41-18635/17).

  In this situation, disputes arise in judicial practice. In other words, if a fine is chosen, but the company has tried to voluntarily eliminate harm to nature, then the court should take this into account when determining the amount of the penalty (Review of Judicial practice of the Supreme Court of the Russian Federation No. 2 (2019) approved. By the Presidium of the Supreme Court of the Russian Federation on July 17, 2019). A person cannot be forced to pay full compensation and carry out the necessary reclamation measures. In cases no. A54-503/2014, no. A57-8748/2019, the courts satisfied such requirements, however, at the stage of appeal to the Supreme Court of the Russian Federation on both disputes, the case was returned for a new consideration.

Speaking of the second form, compensation for soil damage in monetary form is not aimed at protecting the environment, but at replenishing the state budget. The collected money is often not isolated from the rest of the budget and is not spent on the environment, which raises doubts about the measures taken. In this it is difficult to agree with the opinion of the Constitutional Court of the Russian Federation, which found that the damage caused to the environment is often irreparable, and the state has the right to direct money not to restore the environment, but to the appropriate budget (Resolution No. 12-P of June 2, 2015). But then what is the purpose of bringing to justice? After all, if compensation is collected from the company, then it is no longer obliged to carry out restoration work. That is, the harm may actually remain unresolved both on the part of the state and on the part of the harm-doer.

  Thus, the existing system of coercion is controversial in terms of effectiveness. However, a simple tightening of legal liability does not solve this problem. It is necessary to raise the legal awareness of the population and take more "environmentally oriented" measures, up to the termination of the right to use this land plot (Articles 284, 285 of the Civil Code) or, due to repeated violations of the regime of rational use of soils (namely, bringing to administrative responsibility in the past), to bring to criminal responsibility.

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