1. Progress on a European Union liability regime has been slow. See European Commission Green Paper on Remedying Environmental Damage COM (93) 47 final; Grant, M ‘Environmental Liability’ in Winter, G (ed) European Environmental Law: A Comparative Perspective (Aldershot: Dartmouth, 1996)Google Scholar. On the studies used in the preparation of the White Paper, see Poostchi, B ‘Follow up to the 1993 Green Paper on Environmental Liability’ [1996] 5 RECIEL 328 Google Scholar. On the preparatory drafts, see Poli, S ‘Shaping the EC Regime on Liability for Environmental Damage: Progress or Disillusionment’ [1999] EELR 297 Google Scholar; Bergkamp, L ‘A Future Environmental Liability Regime’ [1998] EELR 200.Google Scholar

2. COM (2000) 66 final (hereinafter the ‘White Paper’).

3. White Paper, n 2 above, s 2.1

4. White Paper, n 2 above, s 4.2.2.

5. For a review of command and control and its alternatives, see Baldwin, R ‘Regulation: After Command and Control’ in Hawkins, K (ed) The Human Face of Law (Oxford: Oxford University Press, 1997)Google Scholar; Baldwin, R and Cave, M Understanding Regulation: Theory, Strategy and Practice (Oxford: Oxford University Press, 1999)Google Scholar; Scott, J EC Environmental Law (London: Longmans, 1998) chs 2 and 3Google Scholar. D Robinson ‘Regulatory Evolution in Pollution Control’ and J Steele ‘Assessing the Past: Tort Law and Environmental Risk’, both in Jewell, T and Steele, J (eds) Law in Environmental Decision Making (Oxford: Clarendon Press, 1998)Google Scholar, review some of the dominant critiques of command and control. See also Majone, G Regulating Europe (London: Routledge, 1996) on European Union approaches to regulation.CrossRefGoogle Scholar

6. Under the contaminated land system in the Environmental Protection Act 1990, Pt IIA (introduced by the Environment Act 1995) the enforcing authority can serve a remediation notice requiring the clean up of a contaminated site. See also the Water Resources Act 1991, s 161 (in respect of water pollution).

7. COM (2002) 17 (hereinafter the ‘Draft Directive’).

8. White Paper, n 2 above, s 4.1. The Commission recognises that some detail on non-retroactivity will be necessary for a workable system. The Draft Directive also provides for a non-retroactive scheme: art 19.

9. White Paper, n 2 above, s 4.3.

10. Areas designated under Council Directive (EEC) 79/409 (OJ L103/1) on the conservation of wild buds and Council Directive (EEC) 92/43 (OJ L206/7) on the conservation of natural habitats and wild fauna and flora.

11. The definition of environmental damage in the White Paper is inadequate. Although the Draft Directive is more precise, environmental damage remains, perhaps inevitably, a somewhat open-ended concept.

12. This is the only part of the White Paper which proposes an extension of liability beyond ‘dangerous’ activities: s 4.4.2. Similar provisions would apply under the Draft Directive.

13. Above n 6. See also ‘Working Paper on Prevention and Restoration of Significant Environmental Damage (Environmental Liability)’ available on the Commission website at http://www.europa.eu.int/comm./environment/liability/consultation_en.pdf.

14. Draft Directive, n 7 above, arts 14 and 15.

15. Dating from European Commission, Fifth Environmental Action Programme Towards Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development COM (92) 23 final. See now Sixth Environmental Action Programme, Environment 2010: Our Future, Our Choice COM (2001) 31 final, under which broadening the range of regulatory instruments remains a stated priority.

16. Ogus, A I Regulation: Legal Form and Economic Theory (Oxford: Clarendon Press, 1994)Google Scholar ch 11 reviews some forms of economic incentives, and some of the claims made for them.

17. Based on law and economics approaches to tort. See R Coase, H ‘The Problem of Social Cost’ [1960] 3 J Law and Econ 1 CrossRefGoogle Scholar; Calabresi, G and A Melamed, D ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ [1972] 85 Harv LR 1089 CrossRefGoogle Scholar; Ogus, A I and Richardson, G M ‘Economics and the Environment: A Study of Private Nuisance’ [1977] 36 CLJ 284 CrossRefGoogle Scholar; Campbell, D ‘Of Coase and Corn: A (Sort of) Defence of Private Nuisacce’ [2000] 63 MLR 197 CrossRefGoogle Scholar.

18. White paper, n 2 above, s 3.1; Explanatory Memorandum to Draft Directive, n 7 above.

19. As in the contaminated land scheme, n 6 above. The Draft Directive also seems to prioritise this objective.

20. This is reflected in the Sixth Environmental Action Programme, n 15 above. See also Royal Commission on Environmental Protection, 21 st Report Setting Environmental Standards Cm 4053. Ayres, I and Braithwaite, J Responsive Regulation (Oxford: Oxford University Press, 1992)Google Scholar and Gunningham, M and Grabosky, P Smart Regulation: Designing Environmental Policy (Oxford: Oxford University Press, 1998)Google Scholar consider the involvement of public interest groups in regulation to be significant.

21. Stanton, K and Wilmore, C ‘Tort and Environmental Pluralism’ in Lowry, J and Edmunds, R (eds) Environmental Protection and the Common Law (Oxford: Hart Publishing, 2000)Google Scholar; Steele, n 5 above; McGillivray, D and Wightman, J ‘Private Rights, Public Interests and the Environment’ in Hayward, T and O’Neill, J (eds) Justice, Property and the Environment (Aldershot: Ashgate, 1997).Google Scholar

22. European Commission Implementing Community Environmental Law COM (96) 500.

23. See further Lee, M ‘From Private to Public: the Multiple Roles of Environmental Liability’ (2001) 7 European Public Law 375.CrossRefGoogle Scholar

24. For a more comprehensive review, see Bergkamp, L ‘The Commission's White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime’ (2000) 9 EELR 105 and 141.Google Scholar

25. Explanatory Memorandum to the Draft Directive, n 7 above, at 16.

26. Recovery for disease, rather than traumatic injury, is notoriously difficult, see Stapleton, J Disease and the Compensation Debate (Oxford: Oxford University Press, 1986)Google Scholar. Note that when property damage takes the form of ill health or death of domestic animals, similar issues arise: see Graham v Rechem [1996] Env LR 158.

27. In Reay and Hope v British Nuclear Fuels Limited [1994] Env LR 320, frequently cited as exemplifying the difficulties raised by causation in this area, the claimants failed to convince the court of the plausibility of the causal route alleged.

28. Consider, eg, the delayed impact of asbestos litigation, as in Margereson and Hancock v J W Roberts [1996] Env LR 304.

29. ‘The Community regime could. contain one or other form of alleviation of the traditional burden of proof, to be more precisely defined at a later stage’: White Paper, n 2 above, s 4.3.

30. See Bergkamp, n 1 above; S Poli, n 1 above.

31. An issue that the Commission does not acknowledge, referring instead to the difficulty of proving causation as the reason for the proposed change: White Paper, n 2 above, s 4.3.

32. In the House of Lords' decision Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264, no fault needed to be established as the tort is nominally strict liability, but the unforeseeability of the harm famously led to an absence of liability. The White Paper, n 2 above, s 4.3 seems to reject a state of the art/development risk defence.

33. White Paper, n 2 above, s 4.3.

34. White Paper, n 2 above, s 4.3.

35. There is no provision on causation.

36. Draft Directive, n 7 above, art 9. This is more restrictive than the United Kingdom's contaminated land scheme, n 6 above. Stricter national schemes can be maintained under the Draft Directive, art 18.

37. On this point, see Cane, P ‘Are Environmental Harms Special?’ (2001) 13 JEL 3 CrossRefGoogle Scholar, which, referring to what the White Paper would call ‘traditional damage’, argues that there is nothing unique about environmental harm. Cane also rejects liability for harm to the environment itself.

38. Oliver, D Common Values and the Public-Private Divide (London: Buttenvorths, 1999).Google Scholar

39. Cane, P The Anatomy of Tort Law (Oxford: Hart Publishing, 1997).Google Scholar

40. Wightman, J ‘Private Law and Public Interests’ in Wilhelmsson, T and Hurri, S From Dissonance to Sense: Welfare State Expectations, Privatisation and Private Law (Aldershot: Ashgate, 1998)Google Scholar; Collins, H ‘The Voice of the Community in Private Law Discourse’ (1997) 3 ELJ 407.CrossRefGoogle Scholar

41. Significant exceptions, eg the vicarious liability of employers, of course, distort this idealised structure.

42. Arguments are made that problematic mass torts (including environmental claims) themselves alter the individualised approach. See particularly Rosenberg, D ‘The Causal Connection in Mass Exposure Cases: A “Public Law” Vision of the Tort System’ (1984) 97 Harv LR 849 CrossRefGoogle Scholar; Rosenberg, D ‘Individual Justice and Collectivising Risk-Based Claims in Mass-Exposure Cases’ (1996) 71 NYULR 210.Google Scholar

43. Note that similar restrictions would apply in a liability claim against the state for a breach of European Union law, under Case C-6/90 and C-9/90 Francovich and Bonifaci v Italian State [1991] ECR I-5357, which also requires damage to an individual's rights. The restrictions are not identical: as in the Court of Appeal decision in Bowden v South West Water Services Ltd [1999] Env LR 438, infringement of economic interests may be sufficient.

44. But see the approach of the Court of Appeal in Blue Circle Industries plc v Ministry of Defence [1998] 3 All ER 385, where contamination was found to have damaged land.

45. The fact that it was air (rather than soil or water) that was affected seems to have contributed to the claimants' difficulties in Merlin v British Nuclear Fuels Ltd [1990] 3 All ER 711: ‘The plaintiffs argument that ‘property’ included the air space within the walls, ceilings and floors., that this has been damaged by the presence of radionuclides. seems to me to be too farfetched’, at 720.

46. On recovery of such losses in different international and domestic settings, see Wetterstein, P ‘A Proprietary or Possessory Interest: A Conditio Sine Qua Non for Claiming Damages for Environmental Impairment?’ in Wetterstein, P (ed) Harm to the Environment: The Right to Compensation and the Assessment of Damages (Oxford: Clarendon Press, 1997)Google Scholar. See also Landcatch Ltd v International Oil Pollution Compensation Fund [1999] 2 Lloyd's Rep 316.

47. In Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264, the contamination could not be directly perceived.

48. Hunter v Canary Wharf [1997] AC 655; Wightman, J ‘Nuisance - the Environmental Tort? Hunter v Canary Wharf in the House of Lords’ [1998] 61 MLR 870.CrossRefGoogle Scholar

49. Shavell, S ‘The Optimal Structure of Law Enforcement’ [1993] J Law and Econ 270 Google Scholar; Rose-Ackerman, S ‘Public Law Versus Private Law in Environmental Regulation: European Union Proposals in the Light of United States Experience’ [1995] 4 RECIEL 312.Google Scholar

50. So the classic definition of public nuisance - ‘a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large’: A-G v PYA Quarries [1957] 2 QB 169 at 191 per Lord Denning.

51. Statutory nuisance can include particular situations that are ‘prejudicial to health’, Environmental Protection Act 1990, s 79.

52. Eg Sax, J ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Mich L Rev 471 CrossRefGoogle Scholar; Gray, K ‘Equitable Property’ [1994] CLP 157.Google Scholar

53. Which now means biodiversity damage, water pollution and contaminated land: Draft Directive, n 7 above, art 2.

54. Liability for risk has been urged in some toxic torts commentary in the United States. For differing perspectives on the issue, see Schroeder, C H ‘Corrective Justice and Liability for Increasing Risks’ (1990) 37 UCLA LR 439 Google Scholar; Robinson, G O ‘Risk, Causation and Harm’ in Frey, R G and Morris, C W (eds) Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991)Google Scholar; Rosenberg (1984), n 42 above. Changes to the burden of proof could go some way to this conclusion, by shifting the emphasis from causation of damage to exposure to a (proven) risk which then materialises.

55. Stone, C ‘Should Trees Have Standing?’ (1972) 45 Southern California L Rev 450 Google Scholar; Betlem, G ‘Standing for Ecosystems -Going Dutch’ (1995) 54 CLJ 153.CrossRefGoogle Scholar

56. Injunctions can be awarded against an ongoing private nuisance, and would be possible in an ‘urgent case’ under the White Paper, n 2 above, s 4.7.2. ‘Preventive measures’ could be required under the Daft Directive, n 7 above, art 4.

57. See further Steele, J ‘Remedies and Remediation: Foundational Issues in Environmental Liability’ [1995] 58 MLR 615.CrossRefGoogle Scholar

58. Not traditional damage. The only environmental impact of liability for traditional damage would then be any normative effect of internalising those particular costs.

59. Regulatory standards may affect findings of damage in civil litigation in the United Kingdom: see eg Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264 and Blue Circle Industries plc v Ministry of Defence [1998] 3 All ER 385. See Lee, M ‘Civil Liability for Contamination: Blue Circle Industries plc v Ministry of Defence’ [1999] 50 NILQ 403.Google Scholar

60. In the absence of traditional damage, in English common law the claimant has suffered pure economic loss, recovery for which is severely restricted. Such economic loss may moreover be provoked by the market reaction to a finding of ‘environmental damage’, and this stigma may persist even after restoration work.

61. A large part of the damages for serious personal injury will be lost earnings, and so depend on the claimant's earning power in the market.

62. White Paper, n 2 above, s 4.5.2.

63. Conflicts between national schemes and the ‘serious threat to man and the environment’ standard are not addressed.

64. The United Kingdom system also takes a ‘suitable for use’ approach.

65. White Paper, n 2 above, s 4.5.1.

66. White Paper, n 2 above, s 4.5.1.

67. White Paper, n 2 above, s 4.5.1.

68. White Paper, n 2 above, s 4.6. However, the Commission seems (surprisingly) to view the cost of the provision of equivalent sources as a valuation technique, rather than viewing valuation as a way of assessing comparability: s 4.5.1.

69. It is not appropriate to consider the enormous literature on environmental valuation here. For further consideration of the issues considered below, see Pearce, D and Barbier, E B Blueprint for a Sustainable Economy (London: Earthscan, 2000), especially ch 3Google Scholar; Jacobs, M The Green Economy (London: Pluto Press, 1991), especially ch 17Google Scholar; Farber, D A Eco-pragmatism (Chicago: University of Chicago Press, 1999), especially ch 2.Google Scholar

70. The latter approach gives consistently higher figures than the former.

71. The citations at n 69 above review the difficulties. These authors, however, generally consider environmental valuation to be a useful tool. Sagoff, M The Economy of the Earth (Cambridge: Cambridge University Press, 1988)Google Scholar takes a more negative stance. More fundamental concerns as to whether monetary valuation is appropriate for environmental goods will be returned to below.

72. Pearce and Barbier, n 69 above.

73. Which must in any event make explicit the incorporation of non-economic criteria in the exercise.

74. See Sunstein, C R ‘Endogenous Preferences, Environmental Law’ (1993) 22 J Legal Studies 217.CrossRefGoogle Scholar

75. Draft Directive, n 7 above, Annex II.

76. Draft Directive, n 7 above, Annex II.

77. Draft Directive, n 7 above, art 2(19). See text to nn 69–70 above.

78. At least in the United Kingdom, complicated assessments of what value people place, eg on a leg, are not made.

79. The arguments rest in part on claims of incommensurability between market and environmental values and inconsistencies between market and political behaviour. A prominent critique is provided by Sagoff, n 71 above; see also Sunstein, C R ‘Incommensurability and Valuation in Law’ (1994) 92 Mich L R 779 CrossRefGoogle Scholar; Sunstein, n 74 above. But see Farber, D A ‘Environmentalism, Economics and the Public Interest’ [1989] 41 Stan LR 1021 CrossRefGoogle Scholar, a review of Sagoff n 71 above; Duxbury, N ‘Do Markets Degrade?’ (1996) 59 MLR 331.CrossRefGoogle Scholar

80. Coase, n 17 above; Hardin, G ‘The Tragedy of the Commons’ [1968] 62 Science 1243.Google Scholar

81. Sagoff, n 71 above; Tribe, L ‘Ways Not to Think About Plastic Trees: New Foundations for Environmental Law’ (1974) 83 Yale LJ 1315.CrossRefGoogle Scholar

82. See nn 33-35 above.

83. White Paper, n 2 above, ss 4.7.1 and 4.7.3. English High Court decisions on standing in judicial review may be useful by analogy, eg R v Inspectorate of Pollution, exp Greenpeace (No 2) [1994] 4 All ER 329. The European Court of Justice has been more restrictive than the English courts: see case C321/95 P Stichting Greenpeace Council v Commission [1998] ECR I-1651.

84. The Commission emphasises the importance of the Arhus Convention Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) which envisages broad public access in environmental litigation.

85. White Paper, n 2 above, s 4.7.1. This does not apply in ‘urgent’ cases, when the public interest group may ask for an injunction: s 4.7.2.

86. Gunningham and Grabosky, n 20 above, pp 104–106 considers potential difficulties of interest group involvement.

87. Baldwin and Cave, n 5 above, pp 51–53.

88. White Paper, n 2 above, s 4.9. Note that the Commission rejects the use of an industry funded joint compensation scheme, which was a possibility considered in the Green Paper, n 1 above, s 4.2. See now Explanatory Memorandum to the Draft Directive, n 7 above.

89. White Paper, n 2 above, s 4.9, note 22.

90. The Commission refers to ‘the suffering and painful death of several hundred thousand seabirds and other animals’ following the Erika incident. Note, however, that this would not fall within the definition of ‘traditional damage’. Indeed, it may not fall within the White Paper at all, as s 4.8 raises the possibility of a separate regime for oil spills.

91. The importance of the overall regulatory pattern and interactions is vital. See eg, Gunningham and Grabosky, n 20 above; Rose-Ackennann, S ‘Tort Law in the Regulatory State’ in Schuck, P H (ed) Tort Law and the Public Interest (New York: WW Norton, 1991).Google Scholar

92. Above n 1.

93. Explanatory Memorandum to the Draft Directive, n 7 above.