Environmental Damage and Liability Problems in a Multilevel Context

Name: Environmental Damage and Liability Problems in a Multilevel Context | The Case of the Environmental Liability Directive
Brand: Kluwer Law International
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The Case of the Environmental Liability Directive

Sandra Cassotta(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 23. März 2012

280 Seiten

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Beschreibung

There is a growing interest at different decision-making levels (EU, international and national) in using liability as an element in solving the legal problems of environmental harm. The interest is founded on the necessity to take into account of complex inter-dependencies and interrelationships between the environmental media at global, regional and national levels. In an effort to implement the aims of sustainable development, new views of the traditional liability instrument have to be applied. The book focuses on the Environmental Liability Directive 2004/35/EC (the so-called "ELD") on the prevention and remedying of environmental damage, and evaluates as to whether the ELD has achieved its goals and maintained its ambitions in terms of environmental protection, and what the optimal level of harmonization in terms of environmental protection is. In order to address the question of research of this book, an interdisciplinary framework of analysis and methodology combining political science and law are developed. Since environmental damage is a multidimensional and multidisciplinary problem, par excellence, a multidisciplinary approach is required. Consequently, the use of a multidisciplinary method, combining together in a systematic and rigorous fashion, law, political science, technical elements of economy, insurance law and natural science, is, in the research design of this study, necessary, in a view of tackling the topic in a scientific problem solving-oriented approach. The book draws the overall conclusions by suggesting proposals for amendments and recommendations to be utilized for possible redrafting of the ELD's provisions for the time when the ELD will be object of a procedure of revision. This book will be of interest to practitioners in EU law and EU Environmental law, international environmental law, legal experts on the law of environmental liability, specialists within international organizations but also by political scientists, economists, insurance law specialists, and natural scientists.

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Inhalt

Intro
Title Page
Copyright Page
Dedication
Contents
Foreword
Acknowledgements
Part I: 'What' and 'How' in the Multilevel Environmental Liability Regime
Chapter 1: Setting the Field: Environmental Law and Policy on Environmental Damage and Liability Problems
1.1 Introduction and Statement of the Problem
1.1.1 Theoretical Framework
1.1.2 Operationalising the Theoretical Integrative Framework of International Law and Policy
1.1.3 Methodology and Research Design
1.1.3.1 Methodology
1.1.3.2 Research Design
1.2 Value Added of the Book
1.3 Towards an Untraditional Interdisciplinary Frame on the 'Coexistence Between Public Law and Private Law Approach'
1.4 A New Holistic Perspective of the Law
1.5 Terminology
Part II: Matching Theory with Facts: Building the Framework
Chapter 2: In Search for a Framework of Analysis: The Focal Points at the EU, International and Domestic Levels
2.1 Why the Need to Identify the Focal Points and How to Treat them
2.1.1 Definition of Environmental Damage
2.1.2 Scope of Application
2.1.3 Problem of Who Is Entitled to Claim for Environmental Damage
2.1.4 Compensation for Environmental Damage
2.1.5 Choice of the Type of Liability
2.1.6 Causality Link
2.1.7 Insurance Mechanism
Chapter 3: The Liability Directive from an Historical-Comparative Perspective
3.1 Introduction: The Context of the Liability Directive - The Structure of the Historical-Comparative Chapter
3.1.1 The Main Existing Civil Liability Criteria for Environmental Damage Divided into Groups
3.1.1.1 Fault-Based Liability
3.1.1.2 Strict Liability
3.1.1.3 Absolute Liability
3.1.1.4 Environmental Liability and the Polluter-Pays Principle
3.1.2 The Original Idea of Harmonising Environmental Liability
3.1.3 The 1993 Lugano Convention
3.1.3.1 Definition of Environmental Damage
3.1.3.2 Scope of Application
3.1.3.3 Problem of Who Is Entitled to Claim for Environmental Damage
3.1.3.4 Compensation for Environmental Damage
3.1.3.5 Choice of the Type of Liability
3.1.3.6 Insurance Mechanism
3.1.4 The 1999 Basel Protocol
3.1.4.1 Definition of Environmental Damage
3.1.4.2 Scope of Application
3.1.4.3 Choice of the Type of Liability
3.1.4.4 Insurance Mechanism
3.1.5 The US Example as a Historical-Comparative Model
3.1.5.1 Definition of Environmental Damage
3.1.5.2 Problem of Who Is Entitled to Claim for Environmental Damage
3.1.5.3 Choice of the Type of Liability
3.1.5.4 Causality Link
3.1.6 Background of the Liability Directive
3.1.6.1 The Green Paper
3.1.6.2 The White Paper
3.1.6.3 A Comparison between the Papers
3.1.6.3.1 Definition of Environmental Damage
3.1.6.3.2 Scope of Application
3.1.6.3.3 Problem of Who Is Entitled to Claim for Environmental Damage
3.1.6.3.4 Compensation for Environmental Damage
3.1.6.3.5 Choice of the Type of Liability
3.1.6.3.6 Insurance Mechanism
3.1.6.4 Different Pre-existing Types of Environmental Liability in the EU Member States
3.1.6.5 A Comparison between the German and Italian Example
3.1.6.5.1 The German Example
3.1.6.5.2 The Italian Example
3.1.6.5.3 Definition of Environmental Damage
3.1.6.5.4 Compensation
3.1.6.5.5 Choice of the Type of Liability
3.1.6.5.6 Causality Link
3.1.6.6 The 2002 Liability Proposal
3.1.6.6.1 Definition of Environmental Damage
3.1.6.6.2 Scope of Application
3.1.6.6.3 Problem of Who Is entitled to Claim for Environmental Damage
3.1.6.6.4 Compensation for Environmental Damage
3.1.6.6.5 Choice of the Type of Liability Regime
3.1.6.6.6 Causality Link
3.1.6.6.7 Insurance Mechanism
3.2 Conclusion
3.2.1 EU Level
3.2.2 International Level
3.2.3 National Level
Chapter 4: Institutional Interactions in the EU Environmental Liability Regime-Formation
4.1 Introduction: Linking International Relations with the Effectiveness of the Environmental Liability Regime
4.1.1 How Can an Environmental Liability Regime Be 'Effective'?
4.1.2 The Role of the EU as an Actor in Environmental Mixed Agreements
4.1.2.1 Legal Basis to Conclude Environmental Agreements
4.1.2.2 Voting Procedures to Conclude Mixed Environmental Agreements
4.1.2.3 The Question of Legal Competence and the Level of Harmonisation
4.1.2.4 The EC Negotiations on the Lugano and the Basel Conventions
4.1.2.4.1 Worst Case Scenarios for Environmental Effectiveness
4.1.2.4.2 Best Case Scenario for Environmental Effectiveness
4.1.3 Interactions in the Development Phase of the Liability Directive with the Lugano and Basel Conventions
4.1.4 The Role of the Non-official Actors in the Interactions of the 2002 Liability Proposal
4.2 Conclusion
Chapter 5: The ELD on the Prevention and Remedying of Environmental Damage
5.1 Introduction: Applying the Framework of Analysis
5.2 Goals, Ambitions and Challenges
5.3 Innovations and Different Directions
5.4 Relevant Principles Involved
5.4.1 The Polluter-Pays Principle
5.4.2 The Subsidiarity Principle
5.5 Definition of Environmental Damage
5.5.1 Comparison with the Definition of Environmental Damage at the International Level
5.5.2 Comparison with the Definition of Environmental Damage in the US Model
5.6 Scope of Application
5.7 Problem of who Is Entitled to Claim for Environmental Damage
5.7.1 Obligations for the Competent Authorities as 'Active Claimants' and 'Other Active Claimants'
5.7.1.1 The Role of the Non-official Actors as 'The Other Active Claimants'
5.8 Compensation for Environmental Damage
5.8.1 Obligations of Operators as the 'Passive Subjects' Restoring Environmental Damage
5.8.2 The Concept of Operator at the International Level
5.8.3 The Concept of Operator in the US Model
5.9 Choice of the Type of Liability
5.9.1 Optional Exemptions from Liability
5.9.2 Choice of the Type of Liability at the International Level
5.9.3 Choice of the Type of Liability in the US Model
5.10 Causality Link
5.11 Insurance Mechanism
5.12 Legal Terminology Used as a Result of a Compromise
5.12.1 Linguistic Compromise in the Formulation of the Definition of Environmental Damage
5.12.2 Linguistic Compromise in the Formulation of the Choice of the Type of Liability
5.13 Interactions Between the ELD and Other Parts of EU Law: The Habitat Directive, The Wild Birds Directive and The Water Framework Directive
5.13.1 Introduction
5.13.2 General Considerations
5.13.3 Damage to Habitat and Wild Birds
5.13.4 Damage to Waters
5.14 Conclusion
Part III: Implementation of Law and Policy at the Domestic Level
Chapter 6: Implementation of the Environmental Liability Directive: The Italian Example
6.1 Introductory Panorama on the Problems of Transposition of the Environmental Liability Directive in General
6.2 The Current Status of Implementation
6.2.1 Implementation of the ELD in Different National Contexts
6.3 Reasons for Member State's Difficulties in Handling Transposition
6.3.1 The Italian Implementation: Status of Legislation before and after the Enforcement of the Environmental Liability Directive
6.3.1.1 Definition of Environmental Damage
6.3.1.2 Scope of Application
6.3.1.3 Compensation for Environmental Damage
6.3.1.4 Choice of the Type of Liability
6.3.2 Response of Italy as to the Infringement Procedure Started by the Commission against Its Government
6.4 Conclusion
Part IV: Recommendations, Amendments and Perspectives
Chapter 7: Overall Conclusions
7.1 Conclusion I, Part IV: Has the ELD Achieved Its Goals and Ambitions?
7.2 Conclusion II, Part IV: What is the Optimal Level of Harmonisation in Terms of Environmental Protection Goal Achievements?
References
Table of Cases
Index

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