Liability for Environmental Harm and Emerging Global Environmental Law
Maryland Journal of International Law, Vol. 25, p. 37, 2010
28 Pages Posted: 8 Oct 2010 Last revised: 21 Jun 2014
Date Written: 2010
Environmental law and policy are undergoing rapid change at the global, national, and even local levels. The nations of the world continue to struggle to develop an effective global response to climate change. Transboundary pollution and resource management problems command regional attention even as nations work to upgrade their own environmental standards and their energy, transportation, and land use policies. Surprising environmental initiatives are emerging even from state and local governments.
In my previous work I have argued that globalization is affecting law and legal systems throughout the world in profound new ways. See Robert V. Percival, "The Globalization of Environmental Law," 26 PACE ENVTL L. REV. 451 (2009); Tseming Yang & Robert V. Percival, "The Emergence of Global Environmental Law," 36 ECOLOGY L.Q. 615 (2009). With the growth of global concern for the environment, nations are transplanting environmental law and policy innovations even from countries with very different legal and cultural traditions. Private actors and nongovernmental organizations are driving the development of new legal and nonlegal strategies to protect the environment. These developments are blurring lines that traditionally separated conceptions of domestic and international law and public and private law. This is leading to the emergence of what I have called “global environmental law.”
One of the areas in which the concept of global environmental law can enhance understanding of contemporary legal evolution is the long struggle to develop standards of liability for global environmental harm. The scant progress that has been made in developing tort remedies in international law demonstrates the limitations of relying on public international law that primarily governs relations between states when seeking to regulate private activities that cause environmental harm. For centuries, legal systems around the world have acknowledged the principle that those who cause significant, foreseeable harm to others should be held liable for the damage they cause victims of this harm. The sic utere principle of ancient Roman law and the “polluter pays” principle are now enshrined as universal elements of international environmental law, as recognized in the 1972 Stockholm Declaration and the 1992 Rio Declaration. While the nations of the world have pledged to develop liability standards to implement these principles, effective global liability rules have proven to be elusive. More than a dozen civil liability treaties governing transnational environmental harm have been negotiated but most remain “unadopted orphans in international environmental law.”
This paper reviews the historical development of liability standards for environmental harm and their haphazard incorporation into public international law. It discusses evolving national standards of liability and the obstacles that have made it difficult for victims of environmental harm to hold polluters liable under domestic law. It then examines initiatives to overcome these obstacles in certain countries by relaxing traditional causation requirements and shifting burdens of proof, as illustrated by the United States’s “Superfund” law, China’s new tort law and Japan’s motor vehicle air pollution litigation.
The paper also explores how climate change is spawning new litigation strategies that seek to hold polluters liable for global harm as well as the growth of private litigation to recover against multinational enterprises for the harm their actions cause in foreign countries. It concludes that as globalization continues to blur traditional distinctions between international and domestic law and between private and public law, liability standards for global harm are emerging more from “bottom up,” private initiatives than from the negotiation of multilateral treaties. As a result, as countries strengthen their own domestic liability standards to redress environmental harm, states’ receptiveness to entertain lawsuits by foreign plaintiffs and the development of reciprocity standards for the recognition of foreign judgments will become increasingly important. Transnational private litigation will help provide further impetus for the development of global liability norms that ultimately will become an important part of the new architecture of global environmental law.
Keywords: climate change, public international law
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