Harm to the Environment: The Right to Compensation and the Assessment of Damages

WERNER PFENNIGSTORF

Compensation is normally provided by the law as a second-best remedy if the consequences of an injury or damage cannot be undone by the person responsible through restoration of the exact condition existing before the damaging event. The standard measure of compensation in such cases is the economic loss caused by the injury or damage.

Losses of natural resources are often difficult to measure in economic terms. That constitutes a double challenge: to find new ways to define and measure the economic value of natural resources, or to include damage to natural resources among the types of non-economic losses for which the law, exceptionally, does provide compensation.

All efforts to determine the economic value of nature are at best hampered and at worst frustrated by the age-old ambivalence of mankind's attitude toward nature. It is easy to find agreement, in general terms, that nature must be protected, if not for its own sake, then at least for preserving the conditions and resources on which this generation and future generations of humans rely for survival and, among affluent societies like ours, for enjoyment. However, agreement on the details is difficult, indeed impossible, especially on the kinds of resources that need to be protected, in contrast to those that may be used, exploited, and consumed, and the measures to be taken for effective protection.

Apart from conflicting economic interests, value judgements tend to be influenced by temporary public anxieties and sentiments, by isolated and overrated incidents, incomplete information, or media campaigns.

The current state of German law reflects all of these difficulties. It is the result of many small adjustments on different points over a long period of time, and consequently presents neither a comprehensive nor a perfectly consistent treatment of liability in respect of natural resources.

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