Liability and Environment
19 Pages Posted: 25 Apr 2001
Date Written: April 2001
"Liability and Environment" by Prof. Lucas Bergkamp analyzes the role of law, in particular civil liability, in controlling environmental pollution and risk. In modern environmental policy, liability has become a popular instrument. In this book, Prof. Bergkamp takes a fresh look at civil liability for environmental harm in an inter- and transnational context. Over the last decades, environmental regulations have mushroomed, and liability exposure for environmental harm has expanded significantly. At the international, EC, and national level further proposals for onerous strict environmental liability regimes are pending. The "polluter pays principle," which is an articulation of the "cost internalization" theory in the environmental area, is believed to justify such liability regimes. Applying an instrumental approach to law, Prof. Bergkamp aims to redefine the role of liability in the heavily regulated environmental area. He shows that in the regulatory state liability for environmental harm is not required by the polluter pays principle, is an uncertain and unreliable instrument for achieving prevention, results in an inefficient insurance scheme, and plays a dubious role in adjusting activity levels. Based on an analysis of the basic characteristics of alternative legal instruments, Prof. Bergkamp concludes that civil liability should play a more modest, limited role in an environmental law system dominated by public law. Where deterrence is the objective, objective fault liability can play a useful role as a sanction for violations of applicable standards. Where deterrence is not the objective, first party insurance or other public law regimes should be preferred over liability rules.
In addition to civil liability of private parties, "Liability and Environment" discusses state liability under international, EC, and national law. Under international and EC law, breach of a primary obligation triggers a state's liability. Prof. Bergkamp argues that this rule should be applied also to liability of private parties. In the environmental area, a business' primary obligations are spelled out in detailed permit conditions, regulations and statutes. According to Prof. Bergkamp, only if a polluter breached a primary obligation, he should be liable for environmental harm. The system that Bergkamp advocates is an objective fault liability regime, in which public environmental law defines the standard of care for both government and industry. "In rebuilding our civil liability system, we should keep in mind that what we believe to be good for industry should be good for every one (or it is not good for anyone), and what is good for private parties should be good for the state (or it is not good for either). In rebuilding our civil liability system, the international law of state responsibility, which is unpolluted by risk spreading and activity level considerations, will guide us a long way."
"Liability and Environment" covers also current trends and controversial issues in environmental law. It, for instance, analyzes corporate veil piercing theories that are invoked to impose liability on shareholders, and liability for natural resource damage and related assessment and valuation issues. Unreserved discussions address such topics as the "stakeholder" model of the corporation, sustainable development, and risk assessment and cost-benefit analysis. Following an assessment of the concepts of market and government failure, prof. Bergkamp presents a default-displacement model of liability, in which liability essentially serves as a "stopgap" against abnormal behavior in areas that are not yet regulated and as a sanction in regulated areas.
This book is aimed at advanced law students, academic scholars, and practitioners. In addition, it is of interest to policy and legislative analysts, legislators, and government officials. Economists, philosophers, free trade and laissez faire-supporters, as well as environmentalists may benefit from its wide-ranging, thought-provoking perspectives. In the engaging analysis presented in the book, many current issues of modern environmental law and policy are discussed. It is written in plain, direct language, and tries to avoid excessive use of legalese and technical terminology, so that it is accessible to any reader.
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