Environmental liability under uncertain causation

Recently, the European Commission has issued the “Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental liability”. The Directive extends liability that usually refers to personal injuries and private property to harm where private property does not exist (e.g. biodiversity and endangered species). In these cases, problems with multiple causation and uncertain causation tend to be even more severe than for cases where solely private property is affected. Nevertheless, the otherwise very ambitious Directive remains silent about how to deal with these problems. We focus on uncertain causation and analyze second best optimal standards of proof in a model where benefits of risky activities are private information, and where the firm’s care level chosen to avoid the damage is only imperfectly observable. We derive three results: first, we characterize the factors determining the second best standards. Second, and conversely to the previous literature, high standards of proof such as proof beyond reasonable doubt can be second best optimal even though they lead to inefficiently low care levels. Third, legislators should leave discretionary power to courts which allows them to choose the standard of proof conditional on factors such as the degree of uncertainty over causation or the information quality about care levels as taken by injurers.     

Scaling Residential Retrofits in New York City: Financing,Standardization, and Streamlining

Energy efficiency is a multiple-win opportunity for reducing global warming pollution, providing energy and cost savings, improving local environmental quality, and increasing the resilience of our built environment. In 2030, 85 percent of New York City's building portfolio will be comprised of buildings that exist today. Scaling up building retrofits and creating the policy environment to grow the building retrofits industry in New York City is critical to achieving the city's economic, local and global environmental, public health, and resilience goals. This article proposes scaling up the city's innovative residential energy efficiency efforts through a home efficiency Web portal, accelerating and stitching innovative programs together as they grow, leveraging post-Sandy recovery funding for building performance improvements, and moving stepwise towards certain mandates for energy performance among the city's smaller private buildings.     

论环境权的性质

环境权是一项以环境要素为权利对象、以环境利益为权利客体、以享用良好环境为主要内容的,具有人格面向的非财产性权利。环境权本身既非人格权亦非财产权,而是一项需要综合运用公法和私法、实体法和程序法进行系统保护的独立、新型的环境享用权。环境权与资源权、排污权的权利对象都是自然要素,但三者的权利客体各异,分别指向环境支持功能、资源供给功能和环境纳污功能。资源权、排污权属于广义财产权的范畴,在价值取向上同环境权截然相反;自然保护地役权具有民事权利和行政权力的双重属性,属于保护自然的权利。被称为程序性环境权的环境知情权和环境参与权,亦非环境权,而属于保护和实现环境权的派生性权利。生态环境损害赔偿诉讼在本质上属于责令赔偿生态环境损害之行政命令的司法执行诉讼,尽管同自然资源损害赔偿诉讼一样,也具有环境权益保护的重要作用,但二者均不属于环境权诉讼的范畴。     

Signaling Environmental Stewardship in the Shadow of Weak Governance: The Global Diffusion of ISO 14001

This article examines how the quality of domestic regulatory institutions shapes the role of global economic networks in the cross‐national diffusion of private or voluntary programs embodying environmental norms and practices. We focus on ISO (International Organization for Standardization) 14001, the most widely adopted voluntary environmental program in the world, which encourages participating firms to adopt environmental stewardship policies beyond the requirement of extant laws. We hypothesize that firms are motivated to signal environmental stewardship via ISO 14001 certification to foreign customers and investors that have embraced this voluntary program, but only when these firms operate in countries with poor regulatory governance. Using a panel of 129 countries from 1997 to 2009, we find that bilateral export and bilateral investment pressures motivate firms to join ISO 14001 only when firms are located in countries with poor regulatory governance, as reflected in corruption levels. Thus, our article highlights how voluntary programs or private law operates in the shadow of public regulation, because the quality of public regulation shapes firms' incentives to join such programs.     

环境权与人权问题的国际视野

环境权可以视为第一代人权中的生命权、私人生活权、财产权,由此可以促使政府保护生命和财产免受环境侵害,但这会产生人类中心主义问题;作为第二代人权,能够赋予环境质量以同其他经济、社会与文化权利相当的法律地位,使其优先于其他无权利依据的客体,但是很少对这类人权进行司法;作为集体权利有环境保护的意义,例如保护少数族裔文化和土著居民。国际法上环境权作为实体权利还未建立起来,作为程序性权利体现为公众对环境事务的知情权,决策参与权,司法救济权。通过人权保护环境,其优点在于人权与环境权相比是一项确定的权利,人权法院裁判了一些有环保意义的案子,缺点在于与人无关的环境本身的损害得不到保护,无法进行公益诉讼。     

论环境民事公益诉讼

环境权是一项公益性与私益性相结合的权利。因此,既可私益诉讼,也应允许公益诉讼。无论英美法系还是大陆法系,许多国家,对涉及公益的诉讼都建立了相应的诉讼机制,其中环境公益诉讼在这些规定中往往占重要地位。而我国现行的法律框架里,并无环境民事公益诉讼的立足之地。相反,实践却在急迫的呼唤环境民事公益诉讼的出现。因此,我国可借鉴外国立法模式,建立具有中国特色的环境民事公益诉讼法律制度。     

Policy Coherence, Global Environmental Governance, and Poverty Reduction

This paper explores linkages between policy coherence, global environmental governance, and poverty reduction. It begins with a few thoughts on what these terms mean, and how they are linked. It then provides some perspectives on how the linkages might be improved over time. The paper takes the view that the most coherent institutional framework for both poverty reduction and environmental protection is likely to be one that is relatively decentralised, and based on a modular (networking) structure. The implication is that this framework should rely mainly on domestic and regional governance institutions, rather than on global ones. Effective management of environmental problems (both national and international) also implies a judicious mix of strong government institutions, smooth-functioning markets, and well-targeted infrastructure investments. The business and labour communities are therefore crucial. Other elements of civil society, notably the NGOs, also have important roles to play. Global environmental governance will have to overcome significant resistance insofar as the interests of the developing countries are concerned. Developing countries will need to be convinced that it is in their best interest to participate in global environmental institutions. The best way of making this case is to link (local) poverty reduction objectives explicitly to (both local and global) environmental protection goals. Bringing greater coherence to international trade, investment, and development co-operation policies could make an important contribution to strengthening these linkages. Investment is particularly important here – in the future, investment governance will likely prove to be more important for poverty reduction than environmental governance. Focusing on global environmental governance will not be enough.     

Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement

Developing countries did not start off as demandeurs of global environmental governance. Although they are still rather skeptical about the global environmental enterprise, they have come a long way from being the vigorous contestants that they were three decades ago. This fascinating evolution has not only changed the views of developing countries but has also transformed the shape of the global environmental discourse, most significantly by turning what used to be global environmental politics into what is now the global politics of sustainable development. This paper charts this evolution by using the twin conceptual lenses of effectiveness and legitimacy and the heuristic markers of the three key global conferences on the global environment (Stockholm 1972; Rio de Janeiro 1992; Johannesburg 2002). The paper argues that the pre-Stockholm era was exemplified by a politics of contestation by the South; the Stockholm-to-Rio period was a period of reluctant participation as a new global compact emerged around the notion of sustainable development; and the post-Rio years have seen the emergence of more meaningful, but still hesitant, engagement by the developing countries in the global environmental project but very much around the promise and potential of actualizing sustainable development. The author is grateful to an anonymous review, and to Steinar Andresen, Ellen Hey, and Jessica Green for valuable comments.     

Toxic Torts, Public Interest Law, and Environmental Justice: Evidence from Louisiana*

Poor and minority communities facing environmental hazards have increasingly turned to legal strategies to seek redress but a divide has emerged in these cases and their outcomes. Some aggrieved communities turn to private injury lawyers, while others secure representation by public interest groups, such as Earthjustice, the Southern Environmental Law Center, or university law clinics. Is justice being equally served in these cases? We analyze the impact of toxic tort versus legal aid approaches in determining the outcome of environmental justice struggles using four landmark cases from Louisiana in the context of other factors that appeared important in determining how these cases resolved.     

环境侵权救济之民事诉讼原告资格探究

环境侵权结果须借助自然环境这一中间介质方能发生,而环境的公共性、使用的非排他性等特征决定了受损权利具有公益与私益的双重特征,这也使得提起民事诉讼救济的原告主体有私益性原告与公益性原告的区分,其诉讼请求、诉讼标的、诉讼事由、诉讼利益归属等各有不同,而上述两类原告所提之诉同属民事救济的两种渠道、两个诉讼,可以合并或单独审理。     

公私法协动视野下生态环境损害赔偿的理论构成

生态环境损害赔偿涉及私法与公法的协动。从比较法来看,私法在生态环境损害赔偿中的作用有两种解释路径:一是依托既有权利(如所有权、健康权等)受侵害,扩张损害概念,从责任范围层面涵盖生态利益;二是创设环境权或环境秩序权,从责任成立层面涵盖生态利益。两种进路的背后反映了对于公私法关系的不同认识,前者认为公法、私法并行救济,后者则认为私法救济优先。我国环境法学说传统上采第二种进路,而《生态环境损害赔偿制度改革方案》和“民法典草案”则有采扩张损害概念的整合进路的趋势。我国目前立法与司法实践仍存在体系上的龃龉。应当贯彻扩张损害的思路,在构成侵权的情况下,在责任范围中考虑生态利益。在不构成侵权的情况下,具体考量生态环境损害赔偿能否类推适用民法的规则。     

The Case for Large Participatory Conferences as a Means of Decision Making in International Environmental Law

As global environmental concerns such as climate change draw ever greater attention, there are increasing demands for national governments to engage in coordinated, internationally consistent decision making on environmental mandates, standards, and related matters. Are large participatory conferences the best means to achieve effective, consensus-based decision making in international environmental law? This article proposes two sets of reasons to answer this question affirmatively. First, legal reasons, since several sources of international law point to an incipient right to public participation in international environmental decision making, which could be satisfied by convening these conferences. And second, normative reasons, since allowing for participation is more consistent with the fundamental principles of liberty and equality, and participatory processes enhance the acceptance of the decisions and at the same time augment the possibilities of implementation.     

Holes in the Whole: Considerations on the Made Whole Doctrine and Its Applicability to Environmental Claims

Nearly all states recognize the principle of the made whole rule which mandates that an insured be fully compensated for its loss before its insurer is reimbursed for its payouts. Some states apply the rule to an insured's overall loss, while others engage in an element-by-element examination of damages and allow an insurer to seek reimbursement once the insured has recovered its insured losses. States also take varying approaches on whether, and in what circumstances, insurers can expand their subrogation-like rights by contract. This article sets out a brief history of equitable and legal subrogation and the made whole rule; discusses various applications of the rule and related equitable issues, such as the allocation of attorneys fees for third-party recoveries that benefit both insured and insurer; and offers practice tips for insureds and counsel facing environmental claims.     

论环境政策与环境法律的环境保护合力作用

我国的环境保护工作起步于环境政策,在建设法治国家进程中环境政策与环境法律的并存是客观实际的需要。环境政策和环境法律是我国保护环境的两种有效手段,二者有着共同的利益基础,二者并不矛盾,应当协调配合,共同发挥环境保护的合力作用。本文分析了环境政策与环境法律协调发展的理论基础,提出在现阶段环境政策和环境法律应当并存,进而提出正确处理环境政策与环境法律的协调配合关系。     

The politics of managed competition: public abuse of the private interest

The doctrine of managed competition in health care sought to achieve the social goals of access and efficiency using market incentives and consumer choice rather than governmental regulation and public administration. In retrospect, it demanded too much from both the public and the private sectors. Rather than develop choice-supporting rules and institutions, the public sector has promoted process regulation and benefit mandates. The private health insurance sector has pursued short-term profitability rather than cooperate in the development of fair competition and informed consumer choice. Purchasers have subsidized inefficient insurance designs in order to exploit tax and regulatory loopholes and to retain an image of corporate paternalism. America's health care system suffers from the public abuse of private interests and the private abuse of the public interest.     

Barriers and Bridges for Successful Environmental Technology Transfer

Governmental policy, social factors, individual behavior, and technology play critical roles in improving the environment. The Department of Defense is not immune to these factors as its actions have, and will continue, to impact its operational environments.This research analyzes the technological aspect of improving environmental conditions. Of particular interest, are the barriers encountered when laboratories transfer environmental technology to an end-user, and the bridges used to mitigate these barriers. A case study methodology is utilized analyzing five environmental technology transfers within the U.S. Air Force.Several key barriers and bridges are specific to the transfer of environmental technologies. They include environmental regulatory agency oversight, difficulty in clearly defining the end-user, and the need to demonstrate technologies to potential end-users. However, many barriers and bridges encountered in the environmental technology transfer, are also encountered in the transfer of other technologies. Based on these findings, recommendations are provided for improving the environmental technology transfer process.     

创建“养护者受益”环保法基本原则

“公地的悲剧”自英国的“圈地运动”始得以有效遏制,而保持公地基本制度下的环境保护也仍然在赋予公民无可辩驳的义务与责任之中持续着各种形式的环保投资,可实践证明形式的多样性和不啬资财并未能有效地阻止自然生态环境的持续恶化。究其根源,无不与公地基本制度和法律层面除私有化之外,一直没有公地独特的接纳或认可私权内在的权义对等所需求的基本原则和制度有关。在市场经济条件下,承认并保护公地之上私人为环保所付出劳动和养护投入所获得的权益至关重要,为此,拟创设“养护者受益”环保法基本原则,来弥补公地自然生态环境保护忽视私权关怀之严重缺陷,以期阻止“公地的悲剧”的延续。     

Current Status of the Use of Small Unmanned Aerial Systems for Environmental Monitoring

Unmanned aerial systems (UAS [aka drones]) are becoming an effective method for both environmental assessment and monitoring. Newly enacted rules by the Federal Aviation Administration (FAA), recognize and promote the role of commercial UAS use and provide guidance on issues related to privacy concerns. Currently, the most common use of UAS is for aerial photography or video imagery. UAS craft can carry new lightweight sensors specific to environmental monitoring. Regulatory agencies are currently varied in their acceptance of the use of UAS in environmental assessment. Routine UAS will become more common by environmental professionals as UAS-specific workflows are developed and verified.     

Brazilian Environmental Laws and Policies, 1934–2002: A Critical Overview

This article describes and analyzes major laws, decrees, regulations, resolutions, and institutional mandates linked to environmental protection policies in Brazil, from 1934 to 2002. It argues that many early regulations resulted basically from centralization and planning policies conducted by a development-oriented state. However, it shows that most recent regulations were demanded by a more environmentally aware and more organized civil society, in the context of a more participatory and democratic political framework and improved scientific knowledge and requirements.     

环境法学权利研究方法论

在环境法学权利研究中,方法论是首先需要明确的问题。当前,环境法学权利研究中,过于注重整体主义方法论的运用,从而将权利研究引入两个误区:其一是过于强调国家利益优于个人利益,形成了权力支配下的"义务本位";其二是过于强调生态的整体性,将权利主体扩张到人之外的其他生命甚至是非生命体。而由权利的本质所决定,个体主义方法论应是权利研究中不可或缺的方法论之一。这两种方法论在环境法学权利研究中应紧密结合。