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, in partnership with the Indonesian Center for Environmental Law (ICEL), has begun a judicial training project in Indonesia supported by the Swedish Postcode Foundation to help judges become a strong player in the fight against deforestation and the path toward sustainable development. Deforestation increases greenhouse gas emissions and damages the carbon sinks provided by forests, but also harms the livelihoods of communities that depend upon forest resources. ELI’s and ICEL’s initial assessment of the laws and legal cases related to deforestation and forest fire damages confirmed an urgent need to strengthen the judiciary’s capacity to better understand the liability for environmental damages, estimate damages, and require restitution and restoration. ELI and the project team recently travelled to Jakarta to meet with the Ministry of the Environment and the Indonesian Supreme Court to discuss the assessment’s initial findings and to begin designing a training program for the judiciary and a policy session for decisionmakers.
ELI is helping Cambodia develop an effective legal framework for environmental liability. This is 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 is 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 is currently providing 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 also is collaborating with local partners to develop projects on environmental liability in other countries, including Brazil, Indonesia, 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 working with the United Nations Environment Programme to develop a flagship report on the environmental rule of law. In its judicial training 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.