Applying National Liability Law to Transboundary Pollution: Some Lessons from Europe and the United States

Abstract

This chapter analyses the possibilities to apply national liability to transboundary pollution. First, it is sketched to what extent international norms or treaties play a role in a specific transboundary liability case. Also, the important question is addressed before which forum a transboundary liability case can be brought and which law will be applied. Then, the question is addressed what actors can bring a liability suit and, more particularly, whether this is restricted to victims suffering actual harm or whether NGOs also should have standing. The question is also addressed what the applicable liability rules are for transboundary environmental harm as well as the applicable remedies. Attention is paid to ongoing litigation in the United States and Europe about the use of citizen suits in a transboundary context. The question is also addressed what the effect may be of following regulation or, more particularly, standards prescribed in a permit when this permit has been granted by a foreign authority. Finally, the question is examined how a victim could eventually execute a judgment that he has obtained in the victim state in a polluter state.

Keywords: transboundary harm, environmental liability, Brussels Convention, international private law, Rome II, standing, strict liability, wrongfulness

JEL Classification: K13, K32, K33