On the law of environmental damage : liability and reparation
Abstract: This interdisciplinary thesis investigates three dimensions of reparative environmental law with the application of a trisected generational model evaluated against a theory of environmental efficiency.Commencing at the international dimension, progressing at the regional level, and reaching the national dimension of law, the thesis combines the disciplines of environmental law, liability law and insurance, and describes the development of the law under this approach from a generational model. In the model, three generations of reparative schemes are identified based on civil liability or administrative liability or self-taken measures from the area of insurance. The thesis applies an analysis based on the factors of standard of liability, designation of liability, definition of compensable environmental damage and assessment of environmental damage. Two distinct lines of development traced are the extension of the group of liable persons, in contemporary law including environmental lender liability, and the expanded definition of damage now emerging to provideremedies for damage to public natural resources.The results of the study are evaluated against a theory of environmental efficiency discussing among other factors reparative effect, economic efficiency and equitable cost allocation. The study suggests that reparative law relying on liability is merely a partial strategy when taking into account the policy goals expressed in environmental law. A reversed conclusion, but to the same effect, is that requirements of full reparation upheld in environmental law are advanced: while lacking support from primarily economic science, the principle of restitutio in integrum as based on monetized harm cannot be achieved, in part due to requiring reparation to an identical position ex ante as opposed to an equal situation, in part due to shortcomings of recognized assessment methods.The results further imply that contra-productive effects of reparative rules could be avoided through a flexible and comprehensive strategy combining preventive and remedial economic measures with the remedy of in-kind relief. An important conclusion in this respect is that extra-territorial effects of both pollution and law necessitate unified and harmonized action among legislators, or at a minimum ratification and enforcement of an equalizing treaty.
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