Extending the role of Tort as a means of environmental protection: An investigation of recent developments of the law of Tort and the European Union

Abstract

The purpose of this thesis is to determine the extent to which it is possible to develop an environmental role for the law of tort. To date, the role of tort has been limited in this context by procedural and substantive difficulties in establishing liability (known as transaction costs). Furthermore, whereas environmental protection is a public interest objective, the law of tort is primarily a means of resolving private disputes. The common law has traditionally regarded private rights as being divisible from public interest issues such as environmental protection. The current debate has been prompted by a number of European Union and Council of Europe initiatives on the subject which consider developing tort in this manner by the introduction of a specialist environmental liability regime. However, much of the current debate lacks an appreciation of a fundamental issue, namely purpose of tort in contemporary Western society. This research seeks to make a valuable contribution by assessing the extent to which it is possible to ground an environmental application of tort in a sound conceptual basis. The thesis commences with an overview of the main torts which are relevant in an environmental context and the difficulties which have been experienced by plaintiffs in establishing liability. Given that the main limitation of tort is that it focuses on private interests; it is considered whether it is possible to develop a public interest model of tort which admits wider issues such as the desirability of environmental protection. This involves consideration of a range of issues, including the `philosophy' underpinning tort, the economics of tort, property law and insurability of environmental liability. It is concluded that it is possible, both in conceptual and practical terms, to develop a public interest model of tort and that, furthermore, there are potential benefits with such an approach. The principal advantage of tort is that it allows private individuals to participate in the policing of the environment. An analysis of EC policy on this subject demonstrates that this may provide the rationale for EC intervention in this field. In the light of these theoretical and policy objectives, the EC proposals, alluded to above, are discussed in depth. These initiatives are compared with solutions adopted by individual Member States which have already implemented their own environmental liability regimes. Conclusions are drawn regarding the extent to which such developments may succeed in increasing the efficacy of tort as a means of environmental protection and the wider implications of such an approach. It is concluded that a specialist environmental liability regime may be instrumental in developing a concept of `stewardship', in which proprietary interests in natural resources entail both rights and responsibilities.