Environmental Liability. Using civil lawsuits to protect biodiversity and expand the policy toolkit for conservation

• Pages: 62-62

62 | THE ENVIRONMENTAL FORUM Reprinted by permission from The Environmental Forum®, November/December 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

REPORTELI

Making Law Work for People, Places, and the Planet

Honoring Iraqi Minister | Michael L. Ross delivers inaugural Al

Moumin Lecture on Environmental Peacebuilding

Environmental Liability Using civil lawsuits to protect

biodiversity and expand the policy toolkit for conservation

The harmful exploitation of

resources — including illegal

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ging — is one of the top two

factors devastating global

biodiversity and driving species

to extinction. It damages rural

livelihoods, robs countries of

badly needed revenues, and un-

dermines conservation efforts.

Most countries rely on

criminal and administrative

enforcement to counter illegal

wildlife trade. While these

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and imprisonment, they are

not focused on remedying the

environmental harm.

An international group of

conservationists, lawyers, and

economists, including ELI Visit-

ing Scholar Carol Adaire Jones

and ELI Vice President for Pro-

grams and Publications John

Pendergrass, is now advocating

for the use of environmental

liability suits to counter the il-

legal exploitation of resources

and protect biodiversity. Un-

like criminal and administrative

procedures, these suits can

hold responsible parties liable

for remedying the harm they

have caused, through actions

including habitat restoration,

species protection, public

apologies, and education.

Funded by the U.K. Gov-

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Challenge Fund and led by

Jacob Phelps of Lancaster

University, the team advocates

that conservation liability suits

be used strategically against

defendants involved in illegal

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means to provide remedies.

These include corporations

and organized crime groups

who are held accountable for

restorative actions, typically as

a complement to criminal pros-

ecution.

In addition to publishing a

paper in Conservation Letters,

the team released a guide,

Pioneering Civil Lawsuits for

Harm to Threatened Species:

A Guide to Claims With Ex-

amples From Indonesia, which

is intended to inform NGOs,

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tors, academics, and judges.

Prior ELI research high-

lighted that laws providing a

legal right to remedy for a wide

range of environmental harms

are already in place in many

biodiversity hotspots, includ-

ing Brazil, China, Democratic

Republic of Congo, Indonesia,

Mexico, and more. However,

these laws are seldom used for

a number of reasons. In some

cases, governance challenges

such as corruption may be a

factor. Other impediments in-

clude a lack of awareness of the

law and a dearth of implement-

ing guidance. In particular, one

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culty in valuing the damages.

To address this issue, the

guide builds on what is called

the restoration-based approach

for valuing claims. This method

values damages based on the

cost of restoration projects to

remedy the harm to biodiver-

sity and compensate for losses

incurred until the resources

recover, rather than placing a

value on the harm done. Fol-

lowing the 1989 Exxon Valdez

oil spill and the subsequent

passage of the Oil Pollution

Act of 1990, the approach was

A scene from “Pongo the Stolen Orangutan: How Law Can Heal,” a video illustrating the concept of

conservation litigation, animated by Jaclyn Schwanke.

pioneered in the regulations

written to implement the OPA,

for which ELI's Jones served as

lead economist.

In the United States, the

restoration-based approach to

valuing damage claims — which

has been widely adopted for

other liability statutes — has

been shown to expedite the

restoration of resources after a

case is resolved. This approach

is also more readily transferable

to developing countries than

putting a dollar value on the

harm.

The report guides practitio-

ners and academics through key

concepts and procedures for

environmental liability lawsuits,

including seeking, presenting, and

executing legal remedies. The

guide, journal article, and related

policy resources can be found at

conservation-litigation.org.