Liability for environmental harm is designed to compensate affected 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 environment, liability provisions can serve an important deterrent role, promoting compliance with laws and regulations. Liability provisions can also serve as gap-fillers, covering activities not specifically identified as illegal but nevertheless resulting in harm to the environment, livelihoods, and public health.
Tropical countries face a host of challenges to their natural environment and resources, including deforestation, illegal wildlife trafficking, and contamination from mining, industrial production, and illegal hazardous waste trade. These losses not only have profound ecological effects, but also impair human well-being and deprive national economies of billions of dollars in revenues, impeding sustainable development. Environmental law liability provisions – which are well-established for U.S. and EU oil spills and hazardous waste contamination - offer one set of potential protections.
Research conducted jointly by ELI and the Center for International Forestry Research (CIFOR) found that, increasingly, tropical countries have created legal authorities for environmental liability and are starting to apply them to remedy a wide range of tropical environmental harms, including deforestation, illegal wildlife trafficking, and pollution from mining, oil development, and industry. Yet only a limited number of cases have been resolved each year, and frequently the damage awards were low relative to the actual injuries. The research identified a number of challenges to stronger implementation and made recommendations for improvements, most notably in the areas of governance and valuation of damage claims.
ELI has just completed the second of two major follow-on projects developing resources and providing training for the use of environmental liability to protect biodiversity, centered in Indonesia. Eli is part of an international team of conservationists, economists and lawyers that is advocating for adding environmental liability suits to the policy toolkit for illegal resource exploitation. Funded by the UK Government’s Illegal Wildlife Trade Challenge Fund and led by Jacob Phelps of Lancaster University, the team has deep experience with biodiversity conservation and with U.S. and global environmental liability litigation.
With mentorship from the team, the first lawsuit of its kind was filed in April 2021 against an illegal zoo in Indonesia displaying at least 43 animals of 18 protected species, including the Sumatra Orangutan and the Komodo Dragon (which are both critically endangered with extinction).
We published a paper in Conservation Letters arguing that liability suits can be used strategically against defendants involved in illegal wildlife trade that have the financial means to provide remedies, such as corporations and organized crime groups; further, the team also launched a guide, Pioneering civil lawsuits for harm to threatened species, which explains how to develop lawsuits in wildlife cases, as well as a website (www.conservation-litigation.org) that provides additional resources.
In the prior Indonesia project, ELI, in partnership with the Indonesian Center for Environmental Law (ICEL), conducted a judicial capacity-building project in Indonesia supported by the Swedish Postcode Foundation to help judges become strong players in the fight against deforestation and the path toward sustainable development. Deforestation increases greenhouse gas emissions and damages the carbon sinks provided by forests. Moreover, it harms the livelihoods of communities that depend upon forest resources. ELI and ICEL conducted an assessment of the laws and legal cases related to deforestation and forest fire damages in Indonesia that confirmed an urgent need to strengthen the judiciary’s capacity to understand liability for environmental damages, estimate said damages, and require restitution and restoration. In July 2018, the project team travelled to Riau, Indonesia to facilitate a week-long training on these topics for nearly 40 Indonesian judges, as well as a policy session for decisionmakers.
ELI also provided support to the Cambodia initiative to develop an effective legal framework for environmental liability. This was part of an ambitious two-year process authorized by the Prime Minister and directed by the Minister of Environment in 2015 to create a new comprehensive Environmental Code. The goal was to create a unifying legal framework for natural resource management, environmental protection, biodiversity conservation, and protection and management of cultural heritage that will contribute to overall sustainable development in Cambodia. A key feature of the Code revision is the inclusion of implementation provisions to ensure effective mechanisms for compliance and enforcement. ELI provided expertise in environmental law and economics to several Technical Working Groups advising the Ministry of Environment, including ones addressing land management, tenure and concessions; land, water and biodiversity management; and minerals management.
ELI has also collaborated with local partners to develop projects on environmental liability in other countries, including Brazil and Mexico.
ELI’s work on environmental liability reflects ELI’s priority on helping countries and communities to promote environmental compliance and enforcement. ELI serves as the Secretariat for the International Network on Environmental Compliance and Enforcement. ELI is also working with the United Nations Environment Programme to develop a flagship report on the environmental rule of law. As part of itsJudicial Program, ELI has developed, presented, and participated in educational workshops on critical topics in environmental law for more than 2000 judges from 25 countries in the last 25 years.