Are environmental harms special?

Journal of Environmental Law

Volumn 13, Issue 1, 2001, Pages 3-20

  Cane, Peter ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

COMPENSATION SYSTEM; ENVIRONMENTAL DEGRADATION; ENVIRONMENTAL LEGISLATION; LIABILITY;

EID: 0034988632     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/13.1.3     Document Type: Article

References (36)

1. The article is a revised version of a lecture given at a conference in Barcelona (July 1999) entitled 'Responsabilidad civil por daños y contratos de seguro' organised by Professor Luis Díez-Picazo and Professor Encarna Roca. I approach the topic as a tort lawyer not an environmental lawyer. The lecture was intended to be provocative, and in revising it, I decided not to add too many footnotes even though there is, of course, a very large literature relevant to the matters I discuss. Two particularly useful works, from which I have derived great benefit are: P.W. Birnie and A.E. Boyle, International Law and the Environment (Oxford: Clarendon Press, 1992) and P. Wetterstein (ed), Harm to the Environment: The Right to Compensation and the Assessment of Damages (Oxford: Clarendon Press, 1997).
2. The article is a revised version of a lecture given at a conference in Barcelona (July 1999) entitled 'Responsabilidad civil por daños y contratos de seguro' organised by Professor Luis Díez-Picazo and Professor Encarna Roca. I approach the topic as a tort lawyer not an environmental lawyer. The lecture was intended to be provocative, and in revising it, I decided not to add too many footnotes even though there is, of course, a very large literature relevant to the matters I discuss. Two particularly useful works, from which I have derived great benefit are: P.W. Birnie and A.E. Boyle, International Law and the Environment (Oxford: Clarendon Press, 1992) and P. Wetterstein (ed), Harm to the Environment: The Right to Compensation and the Assessment of Damages (Oxford: Clarendon Press, 1997).
3. For a discussion of the recent EU White Paper, which adopts such a view, see Pos script (p 18) this article.
4. Pollution-Related Health Damage Compensation Law, Law No 111, 5.10.1973 (as amended).
5. Comprehensive Environmental Response, Compensation and Liability Act 1980.
6. See e.g. C. Pugh and M. Day, Pollution and Personal Injury: Toxic Torts II (London: Cameron May, 1995).
7. For discussion see J. Cassels, 'The Uncertain Promise of Law: Lessons from Bhopal', 29 Osgoode Hall LJ (1991) 1.
8. The EU White Paper discussed in the Postscript in this article excludes historic pollution from its proposed liability regime. It leaves Member States to deal with historic pollution by other techniques (such as some form of taxation).
9. R. Gaskins, Environmental Accidents: Personal Injury and Public Responsibility (Philadelphia, 1989) 230-40; K.M. Ward and J.W. Duffield, Natural Resource Damages: Law and Economics (New York, 1992) ch 5.
10. R. Gaskins, Environmental Accidents: Personal Injury and Public Responsibility (Philadelphia, 1989) 230-40; K.M. Ward and J.W. Duffield, Natural Resource Damages: Law and Economics (New York, 1992) ch 5.
11. The term 'civil liability' is often used to cover not only traditional non-contractual (tort) liability, but also regimes under which the State, having cleaned up, repaired and restored the environment, has a statutory right to recover the cost from the polluter(s).
12. Supra, n 8, Gaskins at 233-4.
13. C. von Bar, The Common European Law of Torts (Oxford: Clarendon Press, 1998) para 535.
14. See J. Stapleton, 'Perspectives on Causation' in J. Horder (ed), Oxford Essays in Jurisprudence (Fourth Series) (Oxford: Oxford University Press, 2000).
15. See J.G. Fleming, The Law of Torts, 9th edn (Sydney: LBC Information Services, 1998) ch 16.
16. Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264.
17. J Stapleton, Product Liability (London: Butterworths, 1994) ch 8.
18. P. Cane, 'Fault and Strict Liability for Harm' in W. Swadling and G. Jones (eds), The Search for Principle: Essays in Honour of Lord Goff of Chieveley (Oxford: Oxford University Press, 1999) 197-203.
19. For a brief account see P. Cane, The Anatomy of Tort Law (Oxford: Hart, 1997) 166-79.
20. Another approach is to reverse the burden of proof on the issue of causation. This technique does not seem to me very suitable for dealing with the problems of proof under discussion here, which do not arise out of disparity of relevant knowledge between the plaintiff and the defendant.
21. For an account of the scheme see S. Todd (ed), The Law of Torts in New Zealand, 2nd edn (Wellington: Brookers, 1997) 20-61 and ch 2. For a general discussion of no-fault schemes see P. Cane, Atyah's Accidents. Compensation and the Law, 6th edn (London: Butterworths, 1999) ch 19.
22. For an account of the scheme see S. Todd (ed), The Law of Torts in New Zealand, 2nd edn (Wellington: Brookers, 1997) 20-61 and ch 2. For a general discussion of no-fault schemes see P. Cane, Atyah's Accidents. Compensation and the Law, 6th edn (London: Butterworths, 1999) ch 19.
23. COM (2000) 66 final.
24. Ibid at 2.
25. Ibid at 29.
26. The White Paper offers no justification for subjecting traditional damage caused by pollution to a special liability regime.
27. The proposal extends the liability regime from protection of private rights and interests to protection of the public interest in the environment: Supra, n 20, para 4.7. Eligible claimants would the State and, in default of action by the State or in cases of emergency, environmental protection interest groups that meet 'objective qualitative criteria': Supra, n 20, para 4.7.3.
28. Or, in the case of irreversible damage, the restoration or improvement of comparable natural resources: Supra, n 20, para 4.6.
29. Supra, n 20, section 4.9.
30. Ibid, para 2.2.
31. Supra, n 10 and accompanying text.
32. Supra, n 20, section 7 contains a discussion of the expected economic impact of the proposed liability regime.
33. Ibid, para 21.
34. Ibid at 16.
35. Ibid, section 4.5.1.
36. Ibid at 29.