Tropical Conservation and Liability for Environmental Harm
| Date | 01 November 2015 |
| Author | Carol Adaire Jones, John Pendergrass, John Broderick, and Jacob Phelps |
45 ELR 11032 ENVIRONMENTAL LAW REPORTER 11-2015
Tropical
Conservation and
Liability for
Environmental
Harm
by Carol Adaire Jones,
John Pendergrass, John Broderick,
and Jacob Phelps
Carol Jones is a Visiting Scholar and John Pendergrass
is Acting Vice President for Research & Policy at the
Environmental Law Institute (ELI). John Broderick was
a Law Fellow at ELI from 2014-2015 and is currently
a Trial Attorney with the U.S. Department of Justice
Environment and Natural Resource Division. Jacob Phelps
is an environmental scientist at the Lancaster Environment
Center, Lancaster University, United Kingdom.
Tropical countries face a host of challenges to their
natural environment and resources. Environmental
law liability provisions oer one set of potential protec-
tions. is Article surveys such provisions in a variety
of tropical country contexts. Of the seven countries
studied, spanning a range of legal systems and eco-
nomic development and environmental governance
performance, all but one have the authority to bring
liability claims for harms to the environment. How-
ever, a variety of impediments to eective implemen-
tation have resulted in a limited number of cases being
resolved, and frequently with low damage awards rela-
tive to the injuries. e authors oer a range of rec-
ommendations for improving the eectiveness of the
drafting and implementation of liability provisions to
promote environmental protection.
I. Introduction
Many tropical developing countries face widespread unsus-
tainable resource extraction, landclearing, and industrial
development, placing them at the center of global eorts to
conserve tropical biodiversity and ecosystem services and
reduce greenhouse ga s emissions.1 ese losses not only
have profound ecological eects, but a lso impact huma n
well-being2 a nd deprive national economies of billions of
dollars in revenues, impeding sustainable development.
Beyond revenue losses, t he indirect, long-term losses total
trillions of dollars annually.3
Despite the high costs to society from environmental
degradation, individual incentives to participate in many
environmentally deleterious activities often remain strong.
Policymakers are challenged to realign incentive structures
to promote environmental sustainability. One approach is
to enact eective laws and promote compliance, incentiviz-
ing individuals who weigh the costs of compliance against
the benets (and risks) of noncompliance.4
e internationa l commu nity has long promoted
the environment al rule of law. In 1982, the Gover n-
ing Council of the United Nations Environment Pro-
gramme (UNEP) adopted the Monte video Programme
to guide the development of environmental law.5 A mong
its objectives was the “development of international law
1. , Navjot S. Sodhi et al.,
, 19 T E E 654-60 (2004).
2. Sandra Diaz et al., Biodiversity Loss reatens Human Well-Being, PLoS Bio.
4(8), e277 (2006).
3. W H O, M E A:
E H W-B, H S (2005), avail-
able at http://www.who.int/globalchange/ecosystems/ecosys.pdf; e Eco-
, http://www.teebweb.org/ (last visited
June 29, 2015).
4. Gary Becker, Crime and Punishment: An Economic Approach, 76 J. P.
E., 169-217 (1968).
5. United Nations Environmental Programme (UNEP), Montevideo Pro-
gramme for Development and Periodic Review of Environmental Law, De-
cision 10/21 of the Governing Council (May 31, 1982), available at http://
contributed research and insights into the country studies, including
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
11-2015 NEWS & ANALYSIS 45 ELR 11033
with respect to liabi lity and compensation, includ ing
the improvement of remedies available to the victims
of pollution.”6 e Montevideo Progra mme has been
renewed and updated each decade; Montevideo IV’s rst
objective is to “achieve eective implementation of, com-
pliance with, and enforcement of environmenta l law,”7
recognizing “the role of law, justice, and good governance
in achiev ing susta inable development.”8 ese eorts are,
in principle, premised on the c oncept that actors who
harm the envi ronment, especially high-level responsible
partie s a nd in cases involving egregious harm, must be
held accountable for their actions.
e 1992 Rio Declaration on Environment and Devel-
opment also embraces these challenges, urging nation-
states to enact environmental legislation, including laws
“regarding liability and compensation for the v ictims of
pollution and other environmental da mage.” Principle 16
of the Rio Decla ration explicitly balances environmental
harm and economic growth, seeking to “internalize envi-
ronmental costs” through “economic instruments” that
leave the polluter “in principle, bear[ing] the cost of pol-
lution, with due regard to the public interest and without
distorting international trade and investment.”9 Liability
provisions of ten focus on pollution but are equa lly rele-
vant to other types of environmental harms of mounting
importance to tropical conservation, such as deforestation,
tracking of protected wildlife, i llegal mining and log-
ging, and soil, water, and air contamination from mining
and illegal waste disposal.
Many countries have drafted environmental enforce-
ment legislation informed by Montevideo and the Rio
Declaration. Nation-states have incorporated sanctions for
environmental crimes and civil violations in their criminal
and civil codes and regulations; increasingly, they have also
included liability for environmental harm (also known as
liability for natural resource damages). ese elements of
www.unep.org/delc /Portals/119/pub lications/Monte video_Programme I.
pdf (last visited June 16, 2015).
6. Id. at 6.
7. UNEP Fourth Programme for the Development and Periodic Review of
Environmental Law, UNEP/GC/25/INF/15, Feb. 16-20, 2009, available at
http://www.unep.org/delc/Portals/119/montevideoIV.pdf (last visited June
16, 2015).
8. UNEP, Environmental Rule of Law, available at http://www.unep.org/delc/
worldcongress/eIn ternationalAdvisory Council/tabid/105851 /Default.
aspx. Recent policy fora, such as the newly instituted United Nations En-
vironment Assembly (UNEA), the Rio+20 UN Conference on Sustainable
Development, the International Union for the Conservation of Nature
World Conservation Congress, and the Inter-American Congress on the
Environmental Rule of Law, have highlighted “rule of law” as an under-
recognized instrumental factor in promoting sustainability. , Rio+20
Declaration on Justice, Governance, and Law for Environmental Sustain-
ability §2.
9. United Nations Conference on Environment and Development, Rio de Ja-
neiro, Braz., June 3-14, 1992, -
ment, princs. 11, 13, 16, U.N. Doc. A/CONF.151/26 (Vol. 1), 31 ILM 874
(1992).
enforcement collectively reect the essence of the “polluter-
pays” principle.10
In this Article, we examine the concept of liability for
environmental harm, beginning with the emergence of
environmental liability legislation in the United States and
its spread to the European Union (EU). We then review
the status of environmental liability in seven tropical and
developing countries: Brazil; the Democratic Republic of
Congo (DRC); India; Indonesia; Nigeria; Mexico; and the
Philippines. ese countries are globally signicant for
their extensive forest cover and biodiversity, and for t heir
emerging statutory provisions for environmental liability.
e Article oers a comparison of statutory provisions
across countries, and concludes with recommendations for
how liability provisions can be strengthened to better sup-
port tropical conservation and sustainability eorts.
II. Liability and Compensation for
Environmental Harm
Civil and criminal sanctions are generally designed to pro-
mote compliance with laws and regulations. Liability for
environmental harm is designed to compensate aected
parties, with a particular focus on restoring or replacing
injured resources and/or providing compensation for lost
value. By increasing the costs for those who harm the envi-
ronment, liability provisions can serve an important deter-
rent role.11 Liability provisions can also serve as gap-llers,
covering activities not specically identied as illegal, but
nevertheless resulting in environmental harm.12
Courts in all seven tropical countries that we studied
recognize private causes of action to recover economic
losses, including lost income or prots, or loss of property
values, from injuries to privately held resources. Yet, in
many countries, a substantial share of natural resources are
owned or regulated by the public sector. For example, the
United States (for the most part) has not created private
ownership rights to the atmosphere, oceans, estuaries, riv-
ers, and plant and animal species, but rather has designated
them as public trust resources, and has established a system
of public management to promote benecial uses of the
resources at no (or limited) charge to the public. Conse-
quently, establishing the authority to collect damages for
10. , id. princ. 16; International Convention on Civil Liability for Oil
Pollution Damage (Nov. 29, 1969), 973 U.N.T.S. 3 (replaced by 1992
Protocol (Nov. 27, 1992), 1956 U.N.T.S. 255); Comprehensive Environ-
mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§§9601-9675, ELR S. CERCLA §§101-405 (1980); Oil Pollution Act
(OPA), 33 U.S.C. §§2701-2761, ELR S. OPA §§1001-7001 (1990).
11. Adam D.K. Abelkop, , 92
O. L. R. 381, 391-92 (2013). Wayne B. Gray & Jay P. Shimshack, e
Empirical Evidence, 5 R. E. E. P’ 3, 12-17 (2011).
12. Abelkop, supra note 11.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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