Reflections on Environmental Liability Schemes in the United States and European Union: Limitations and Prospects for Improvement

Abstract

We are constantly confronted with cases of severe damage to the environment resulting from human acts. High profile cases capture the international community’s attention briefly such as the infamous 1989 Exxon Valdez oil release in Alaska’s Prince William Sound and more recently, the accident with the Erika oil tanker in the South of Spain, two examples of cases where human activities have resulted in substantial damage to the environment. In addition to these catastrophic events, mankind also releases countless harmful substances to land, water, and air on a daily basis. Both the United States and the European Union responded to create liability schemes for damage to the environment, although some two decades apart. Neither scheme provides for liability for personal injury or property values, leaving that to the individual 50 U.S. states and the Member States of the European Union, respectively.

For an environmental liability system to be effective, the regulation of hazardous and solid waste (and air and water pollution) must be linked policy-wise to environmental liability initiatives. Environmental liability and environmental regulation are complementary schemes and must be evaluated in terms of the extent to which they advance the precautionary principle, pollution prevention, and public participation. These are explicit tenets of European Union environmental law, but they are also appropriate benchmarks for the evaluation of any environmental liability scheme.