Research on Civil Liability for Environmental Harm under Dual Regulatory Approach

Author:Di Tian Tian

Supervisor:wang li ping


Degree Year:2019





Since the Industrial Revolution,the rapid development of world economy has brought about enormous environmental problems,threatening people’s living environment and restricting sustainable development.While China has achieved a"Chinese Miracle" after 40 years of economic take-off,its environmental problems are having an outbreak.Theoretically,environmental harm falls into two categories.One is harm to private rights and interests,namely,personal injury and property damage,and the other is harm to environmental public interest,or to put it another way,damage to the environment itself.They correspond to two types of civil liability:environmental tort liability and civil liability for environmental damage.The United States and the European Union which is influenced by the United States,have developed relatively advanced environmental rules and adopted a dual regulatory approach under which environmental liability finds its authority in tort law while civil liability for environmental damage is stipulated by specific environmental statutes.At present,environmental tort liability system is shaping up in China,but civil liability for environmental damage is deficient in its regulatory approach and specific rules,limiting its effectiveness in remedying environmental public interest.Therefore,both practitioners and academia are actively exploring how to deal with the relationship between the two types of civil liability so as to choose the appropriate regulatory approach,and how to further improve specific rules in order to provide effective remedy for environmental private and public interests.This research is based on the aforementioned theoretical and practical problems.After probing into the regulatory trend of civil liability for environmental harm in the United States,European Union and international treaties on environmental liability,this research centers on the advanced civil liability system for environmental harm in the United States,including its environmental tort liability and civil liability for environmental damage stipulated by Comprehensive Environmental Response,Compensation and Liability Act(hereinafter CERCLA),aiming to provide reference for China’s environmental liability system in both regulatory approach and specific rules.In this sense,this research is divided into six parts except for the Introduction.Chapter One explains the two categories of civil liabilities for environmental harm and the legal trend in dual regulatory approach.First,by differentiating among"environmental tort","environmental damage" and "environmental harm",it concludes that civil liability for environmental harm can be categorized into environmental tort liability and civil liability for environmental damage.Those two types are different in elements of claim,victims,standing,specific liabilities and their functions,but they also have some connections or similarities.Second,it explores the the regulatory trend of civil liability for environmental harm.The legal response to environmental issues in the United States has gone through a development process from tort law to environmental statutes.Currently,its two types of environmental civil liabilities are separately regulated by tort law and such environmental statutes as CERCLA.CERCLA has exerted a great impact on the Directive 2004/35/CE of the European Parliament and of the Council on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage.This Directive establishes a common framework of civil liability system for environmental damage in the EU,and through its transformation of domestic laws,almost all member states have established a civil liability system for environmental damage in addition to the traditional environmental tort liability system.Besides,international treaties on environmental liability have demonstrated to some extent the dual regulatory trend by integrating environmental damage into the liability system or by exclusively stipulating civil liability for environmental damage,taking as an examples the International Convention on Civil Liability for Oil Pollution Damage,Protocol on Environmental Protection to the Antarctic Treaty and Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety.From Chapter Two to Chapter Five,this research focuses on civil liability for environmental harm in the United States.Chapter two specifically explores its environmental tort liability system,including causes of action,defenses to liability as well as forms and scope of liability.The causes of action frequently applied in environmental tort cases include nuisance,trespass,negligence and strict liability for abnormally dangerous activities.The defenses often asserted by the defendant usually fall into three categories:the conduct of the defendant,the conduct of the plaintiff,and the intervening and superseding cause.In addition,equitable bars may apply when the plaintiff claims for injunctive relief or other equitable remedies.In environmental tort cases,the court may issue an injunction based on the principle of"balancing the equities" or award monetary damages.Monetary damages is most commonly used and can be further categorized into compensatory damages,punitive damages and nominal damages.Due to the particularity of environmental tort,new types of compensatory damages have emerged,such as stigma damage.sub-cellular damage,future risks and medical surveillance costs.Punitive damages provides sanctions and deterrence,and in order to ensure equality and justice,its application and amount are often restricted by the substantive and procedural requirements under the Fourteenth Amendment to the U.S Constitution.Chapter Three,Four and Five analyze civil liability for environmental damage under CERCLA.Chapter Three,after introducing its legislative background and scope of application,probes into the basic theories under CERCLA,including responsible parties,standard of liability and defenses to liability.CERCLA imposes status-based liability on four categories of potentially responsible parties:the current owner or operator of contaminated property,the owner or operator of the contaminated property at the time a hazardous substance was disposed of at the property,a non-owner or operator of the contaminated property who arranged to dispose of a hazardous substance at the property,and persons who transported hazardous substances to the contaminated site.The liability is strict regardless of fault,and responsible parties are jointly and severally liable unless the divisibility of liability is proven.The statutory defenses in CERCLA include act of God,act of war and act of a third party.In addition,the defendant may also assert innocent landowner defense,prospective bona fide purchaser exemption,contiguous landowner exemption or de micromis exemption.Chapter Four and Chapter Five explore the specific liability mechanisms under CERCLA.CERCLA creates two types of civil liability mechanisms.One is cleanup actions and recovery of response actions,the other is natural resources damages(NRD)mechanism.Chapter Four centers on the first mechanism.The federal government may,financially supported by the superfund,take action on its own through Federal Environmental Protection Agency or a state or Indian tribe that has entered into a cooperative agreement with the federal government,or it can order potentially responsible parties to take action.Response actions taken by the government must comply with the procedural requirements and standards of the National Contingency Plan,and remedial actions must be directed to contaminated sites in the National Priority List.The Federal Environmental Protection Agency can also,by obtaining an injunction from the court or issuing an administrative order,mandate responsible parties to clean up contaminated sites.The government and anyone else can file a cost recovery lawsuit when its response action is consistent with the National Contingency Plan.During or after the lawsuit,the defendant may file a contribution lawsuit against the other potentially responsible parties,and the court shall distribute the response costs among the responsible parties according to the appropriate equitable factors.Chapter Five studies the NRD mechanism in terms of elements of claim,standing,standard and scope of compensation and defenses to NRD liability.Based on the public trust doctrine,federal,state,territorial and tribal governments as trustees may seek compensation for natural resources when they are injured or destroyed.Compensation standard of NRD evolves from the "lesser of" rule in common law to the standard which requires the measure of NRD "shall not b limited by the sums which can be used to restore or replace such resources".Specifically,the types of damages a trustee can recover include primary restoration cost,compensatory restoration cost and reasonable assessment costs.Primary restoration cost is the cost of restoring or replacing the damaged resources to the baseline condition,and compensatory restoration cost is damages based on injuries incurred from the onset of the release through the recovery period,namely the interim service loss.Judicial practice further specifies interim service loss by considering both the use values and non-use values of natural resources.In addition to the defenses generally applicable under CERCLA,there are distinct limitations on NRD liability,such as federal permitted release and prohibition on double recovery.Chapter Six,as required by comparative legal study,reflects on China’s civil liability system for environmental harm,and discusses how to improve its regulatory approach and specific rules by drawing on the successful experiences of the United States.Generally speaking,environmental tort liability system is becoming mature in China,but rules on civil liability for environmental damage which have not been stipulated by a law promulgated by the People’s Congress or its Standing Committee,stay fragmented and low in legal hierarchy.In order to solve the deficiencies of civil liability for environmental damage,the draft sections of tort liability under Chinese Civil Code,guided by the“green principle" in the General Principles of Civil Law,have made "green" efforts to integrate environmental damage into the traditional tort system.Besides,similar approaches have also been proposed by the academia.However,those proposals may excessively push the "greening" boundary of civil law and can hardly achieve their ends.The different values upheld by civil law and environmental law demonstrated,to some degree,the reasonableness of dual regulatory approach for the civil liability of environmental harm under Chinese legal system.In this sense,the tort section of Chinese Civil Code should adhere to the protection of private rights and interests,and further improves on relevant rules as regards causal behaviors,burden of proof,etc.In addition,it may learn from relevant rules in the environmental tort liability system of the United States,thereby appropriately expanding the scope of compensatory damages and reasonably setting punitive damages.In terms of civil liability for environmental damage in China,the best legislative choice at present is to enact a comprehensive liability law which contains both substantive and procedural rules.It may draw on the successful experiences of CERCLA for the furtherance of specific rules.Beyond that,the establishment of an exclusive environmental damage compensation fund is another useful experience CERCLA can offer us.