Valuing Nature in Environmental Law: Lessons for Animal Law and the Valuation of Animals

AuthorJoan E. Schaffner
Pages243-265
243
Chapter 10:
Valuing Nature in
Environmental Law:
Lessons for Animal Law
and the Valuation of Animals
Joan E . Schaffner
I . Environmental Law: Valuing Nature ...................................................245
A. Identifying Nature’s Values ...........................................................246
B. Quantifying Nature’s Values .........................................................249
C. Legal Valuation of Nature: Natural Resource Damages Under
CERCLA .....................................................................................252
II. Animal Law: Valuing Companion Animals .........................................255
III. Lessons From Environmental Law .......................................................258
A. Recovering Companionship Value of Companion Animals ..........258
B. Recovering All Animals’ Intrinsic Value ........................................261
Conclusion ................................................................................................... 264
To eectively protect nature and animal interests u nder the law, the
law must recognize and respect their value, not only their value to
humans as resources or private property, but their intrinsic value in
their own right. is goal is important both legislatively and judicially. Leg-
islation that regulates conduct a ecting the environment and a nimals’ lives
and sets sanctions for their violation is the result of utilitarian ba lancing of
the costs and benets of such conduct. Such utilitarian balancing must prop-
erly reect the value of nature and animals’ lives and the costs to them when
harmed to provide adequate protection. Judicially, the same balancing occurs
when setting common law standa rds of care and the dama ges imposed for
violation. e level of incentive to comply with the legal sta ndard is primar-
ily a function of the damage s imposed when enforced. us, to properly set
incentives to comply with legal standards and avoid harm to nature and ani-
mals, the damages imposed must properly reect their value.
244 What Can Animal Law Learn From Environmental Law?
In both environmental law1 and animal law,2 the issue of the proper mea-
sure of damages for the loss of nature/natural resources and of a nimal life
has been a source of great controversy among politicians, judges, commer-
cial actors, a nd environmental and animal advocates over the years. ese
debates have occurred in isolation to a large degree with environmental law,
and its arguably more progressive approach to natural resource damages,
having little inuence within the animal law debate. Although socially and
legally the two regimes are dist inct, the environmental approach to the valu-
ation of natural resource damages may inform the animal law debate over the
valuation of animals a nd damages awarded when they are harmed.
A basic primer on da mages is usefu l to help frame the discussion. ere
are three types of damage s available u nder the law— compensatory, restitu-
tionary, and punitive.3 Each serves dierent goa ls. Compensatory damages
are harm-based damages designed to compensate the vict im for the ha rm
suered in order to place the victim, as closely a s possible, in the position he
or she would have been absent the wrong.4 Restitutionary damages are gains-
based damages designed to disgorge the wrongdoer of any gains received as
a result of their wrongdoing.5 Punitive damage s are penal-based damages
designed to punish and deter intentional wrongdoing.6 e measurement of
each is g uided by the goals they are designed to serve. Compensatory dam-
1. See, e.g., Sanne H. Knudsen, Remedying the Misuse of Nature, 2012 Ut L. R. 141 (2012); Itzchak
E. Kornfeld, Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP
Deepwater Horizon Spill, 38 B.C. E. A. L. R. 317 (2011); Allan Kanner & Tribor Nagy,
Measuring Loss of Use Damages in Natural Resource Damage Actions, 30 C. J. E. L. 417
(2005); Dale B. ompson, Valuing the Environment: Courts’ Struggles With Natural Resource Damages,
32 E. L. 57 (2002).
2. See, e.g., Phil Goldberg, Courts and Legislatures Have Kept the Proper Leash on Pet Injury Lawsuits:
Why Rejecting Emotion-Based Damages Promotes the Rule of Law, Modern Values, and Animal Welfare,
6 S. J. A L.  P’ 30 (2013); Victor Schwartz & Emily Laird, Non-Economic Damages
in Pet Litigation: e Serious Need to Preserve a Rational Rule, 33 P. L. R. 227 (2006); Rebecca
Huss, Valuation in Veterinary Malpractice, 35 L. U. C. L.J. 479 (2004); Margit Livingston, e
Calculus of Animal Valuation: Crafting a Viable Remedy, 82 N. L. R. 783 (2004); William C.
Root, Man’s Best Friend: Property or Family Member? An Examination of the Legal Classication of
Companion Animals and Its Impact on Damages Recoverable for eir Wrongful Death or Injury, 47
V. L. R. 423 (2002); Geordie Duckler, e Economic Value of Companion Animals: A Legal and
Anthropological Argument for Special Valuation, 8 A L. 199 (2002); Sonia Waisman & Barbara
Newell, Recovery of “Non-Economic” Damages for Wrongful Killing or Injury of Companion Animals: A
Judicial and Legislative Trend, 7 A L. 45 (2001); Steven Wise, Recovery of Common Law Damages
for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion
Animal, 4 A L. 33 (1998).
3. See generally D B. D, L  R: D, E, R (2d ed. 1993);
see also Doug Rendleman, Measurement of Restitution: Coordinating Restitution With Compensatory
Damages and Punitive Damages, 68 W.  L L. R. 973 (2011).
4. Rendleman, supra note 3, at 975.
5. Id. at 975, 978-79.
6. Id. at 976, 980.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT