Allocating Unknown Risk: Liability for Environmental Damages Caused by Deliberately Released Genetically Modified Organisms

Abstract

This article explores liability for partly or completely unknown risks associated with genetically modified organisms (GMO's) that have been deliberately released into the environment. Specifically, from a positive law and normative perspective, it deals with liability for environmental damages, including natural resource damage, caused by such GMOs. GMO liability is being examined at the international level pursuant to the Cartegena Biosafety Protocol and the UN Biodiversity Convention and at the national level by several countries. In March, 2000, the European Parliament's Environment Committee proposed to include a strict liability provision in the EC legislation on the deliberate release of GMO's. The trend towards biotechnology-specific liability regimes raises a question as to the need for and desirability of such specific liability rules. The first part of this article briefly discusses the GMO regulatory framework that has been established by the European Community (EC). Following the discussion of EC legislation on deliberate release of GMO's, in the second part, the focus shifts to international liability schemes, specifically the Biosafety Protocol under the 1992 UN Biodiversity Covention, the 1993 Council of Europe Lugano Convention and the 1985 EC Product Liability Directive. National liability regimes will also be briefly reviewed. This part deals with the question whether and, if so, under what conditions the operator of an activity involving GMOs or the producer of a GMO can be held liable for environmental damages arising from unknown risks caused by GMO's. The last part analyzes the findings and discusses the issue as to whether the existing liability regimes adequately allocate the risks of deliberately released GMO's. It discusses the need for biotechnology-specific liability rules, and the European Commission's views on this subject, as set forth in the recent White Paper on environmental liability. In analyzing GMO liability, the objectives of liability schemes are explored. The author concludes that biotechnology-specific liability rules are not desirable.