SPECIFICITY OF ENVIRONMENTAL LOSS AND DAMAGE

There are two aspects which are specific to the discussion of environmental loss and damage: the environment is victimless and the environment is sick.

Let us start by considering the first aspect: the environment is victimless. Who can claim that he/she is affected in his or her rights or interests by the disappearance of elephants or tigers, by ocean pollution or even by climate change? Obviously, all humans are affected and this is different from normal cases concerning loss and damage: in such normal cases, there is a wrongdoer and a person who is affected in his or her individual rights of life, health, property, etc. The wish to protect individual interests and rights against harm allowed claims and actions against the wrongdoer and, since the arrival of large-scale administrations, against public authorities. Law developed sophisticated provisions concerning the burden of proof, causation, repair, compensation for pain and suffering, prescription and other mechanisms to balance the interests of the wrongdoer and the victim, in administrative law instruments such as the separation of powers (“the king can do no wrong”), the shielding of individual officials, presumptions in favour of the administration and other mechanisms.

Most of these instruments and mechanisms do not work in environmental law. Trees have no standing and cannot address a court, nor can tigers, elephants or eagles claim damages. Furthermore, environmental conflicts with neighbours only play a minimal role in the overall impairment of the environment. Since in all industrialised countries – and beyond – the protection of the “environment” as a general interest has been put into the hands of public authorities, which at the same time permit and monitor economic or infrastructural activities that are harmful to the environment, the defence of the environmental interests often has to turn against public authorities when these either authorised or tolerated damaging activities or remained passive when damaging activities were deployed by economic operators.

This description touches on the second aspect of relevance: the environment is sick. The law on damages of industrialised countries is based on the assumption that there is a damaging act or activity and a victim whose rights or interests are impaired and who thus looks for compensation. In environmental law, such a scenario is only part of the truth.