Deterring, Compensating, and Remedying Environmental Damage: The Contribution of Tort Liability
The purpose of this Chapter is to discuss the role which tortious civil liability rules should play within the general body of laws which collectively may be said to encompass liability for environmental damage.
The discussion will reflect a certain unease as regards developments which may be seen to be occurring (or are being proposed) within a number of legal jurisdictions as regards the scope and nature of tortious civil liability for environmental harm: in particular the trend, in this context, towards regimes of strict liability.
It may be helpful at the outset to offer, more by way of assertion than demonstration, two statements of general principle which it is suggested should guide our thinking on this important matter; and which are at the root of the several concerns to be expressed. In a more positive vein, these principles assist the formulation of certain policy suggestions which will be ventured at the conclusion of the discussion.
The first of these two preliminary contentions may be stated, quite simply, in the following way: the rules which a legal system develops on the matter of tortious civil liability for environmental damage should integrate in a way which can be rationally justified into that legal system's general body of civil liability rules. It will be suggested that such rational integration presents some considerable difficulty in the context of liability for environmental damage.
The second of the suggested principles which should inform discussion of this matter requires a little fuller statement and explanation. The suggestion is that, in considering the appropriate scope and nature of tortious civil liability for environmental damage, it is important to keep in mind the fact that such rules of civil liability are but one aspect of a rather broader collection of legal rules which,