Model Law on Environmental Liability

Environmental liability is a matter of fairness. The deterrence effect of environmental liability also helps to reduce environmental pollution. Unsurprisingly, environmental liability acts have emerged in many jurisdictions around the globe. Quite a number of them will soon go under revision. In view of that, we undertake the development of a Model Law on Environmental Liability. Our model law covers both the public law and the private law side of environmental liability, offering more choices for regulators.

During the last 15 years, climate change litigation, including tort litigation against “carbon majors” (private companies having substantially contributed to climate change) has also spread across the globe. However, classic tort law has, in most jurisdictions, not adapted to process tort climate change claims. As these claims are frequently raised, we offer users the possibility to integrate climate change liability into their respective environmental liability act. We recommend setting up a few particular rules for climate change tort litigation. Leaving judges with the current tort law system is not an attractive alternative. Without specific rules, judges face the uncomfortable choice of either overburdening the companies that contributed to climate change with a disproportionate compensation obligation for the entire damage or to leave the victims of climate change without effective rights. Please take a look at how we offer jurisdictions the possibility to strike a fair balance.

In view of the different implementation capacities of jurisdictions, including those of developed economies, the following colour coding is used in this Model Law on Environmental Liability:

  • Green stands for provisions which are “technically easy to implement” or “unavoidable / essential whilst being of medium difficulty to implement”; we thus recommend the green provisions for all jurisdictions.
  • The provisions marked in yellow are all of medium difficulty.

The model law is constructed in such a way that it could “stand” with the green provisions alone, but that the sections or provisions in yellow can be added as extension modules.

In the above, we refer to the aspect of technically simple and medium  implementation. This parameter alone should not be the basis on which provisions are included or excluded in a particular regulation. What is more important is the overall quantitative implementation and in particular, the enforcement capacity of the jurisdiction, even very advanced technical jurisdictions should consider this carefully. Hence the following questions need to be answered:

  • Do we have the necessary (quantitative) enforcement capacities to enforce all the provisions we deem ideal?
  • If not, which provisions shall we mainly focus on in terms of enforcement, where shall we steer our resources?

As a result of this sequence of questions, even some provisions marked in green will need to be eliminated at the end of the day, and this even in technically very advanced jurisdictions. Again, we encourage the regulator to be selective.

Download Model Law Environmental Liability

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