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Liability and Environment

ISBN13: 9789041116451
ISBN: 9041116451
Published: October 2001
Publisher: Brill Academic Publishers
Format: Hardback
Price: £275.00

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""Liability and Environment"" analyzes the role of law, in particular civil liability, in controlling environmental pollution and risk. In modern environmental policy, liability has become a popular instrument. In this book, Bergkamp takes a fresh look at civil liability for environmental harm in an international and transnational context.;Over the last decade, industry's liability exposure for environmental harm has expanded significantly. At the international, EC, and national level proposals for onerous strict environmental liability regimes are pending. Applying an instrumental approach to legal instruments, the text aims to redefine the role of liability in the heavily-regulated environmental area. It shows that liability for environmental harm is not justified by the ""polluter pays"" principle, is an uncertain and unreliable instrument for achieving prevention, results in an inefficient insurance scheme, and plays a dubious role in adjusting activity levels.;Based on an analysis of the basic characteristics of alternative legal instruments, Professor Bergkamp concludes that civil liability should play a more modest, limited role in an environmental law system dominated by public law. Where deterrence is not the objective, first party insurance, compensation funds, or other public law regimes should be preferred over liability rules. In addition to civil liability of private parties, Liability and Environment discusses State liability under international, EC, and national law. Under international law, breach of a primary obligation triggers a State's liability. Prof. Bergkamp argues that this rule should be applied also to liability of private parties. In the environmental area, a business' primary obligations are spelled out in detailed permit conditions, regulations, and statutes. According to Prof. Bergkamp, only if a primary obligation is breached, a private person should be liable for environmental harm.;The system that Bergkamp advocates is an objective fault liability regime, in which public environmental law defines the standard of care for both government and industry. ""In rebuilding our civil liability system, we should keep in mind that what is good for industry should be good for everyone (or it is not good for anyone), we should keep in mind that what is good for private parties should be good for the state (or it is not good for either). In rebuilding our civil liability system, the international law of State responsibility, which is unpolluted by risk spreading and activity level considerations, will guide us a long way."";This book is aimed at advanced law students, academic scholars, and practitioners. In addition, it should be of interest to policy and legislative analysts, legislators, and government officials.