Choice of Law in Environmental Torts in the U.S. and in the E.U.

Abstract

Choice of law in cross-border environmental torts is particularly important given the difficulty of repairing harm to the environment and public health. The major question in cross-border environmental torts is what law should a court apply when the case before it involved out-of-state parties or occurrences: the law of its own state or that of a perhaps more connected jurisdiction’s? Choice of law is important in the context of environmental torts, both in the United States (U.S.) and in the European Union (E.U.), because of the gravity of environmental harm due to the many irreversible effects of pollution and because of the critical need to protect public health and safety. States in the U.S. and Member States in the E.U. often have different environmental standards, regardless of U.S. or E.U.-wide regulation, and also often have different types of tort law. First, this paper will explain how environmental torts work in the U.S. and in the E.U. Then this paper will look at current U.S. and E.U. conflicts of law approaches to jurisdiction and choice of law in transboundary environmental torts, examining whether the law of the place of conduct or the place of injury applies, examining similarities and differences between U.S. and E.U. in their treatment of choice of law in environmental torts. Then this paper will compare and contrast the current U.S. and E.U. approaches to examine which features of conflicts law are better at addressing the needs of victims and the environment, as well as overall federal and state policies. This paper argues that in cases where the environmental tort occurs in State A and the victim is in State B, the law that is more favorable to the victim should apply because that creates an incentive for State A tortfeasors not to discharge harmful pollution in such a way that people are harmed. If polluting conduct occurs in a state that has less favorable tort law for victims, when the injury to the victim occurs in a jurisdiction with a tort system that favors plaintiffs, the victim should not be subject to the less favorable law. The E.U. has embraced this approach and the harmonization in conflicts of law will be beneficial because it will allow tortfeasors to know with certainty that the law that is more favorable to the victim will apply, deterring tortfeasors from creating risks of harm. However, even without a harmonized choice of law system, in the U.S. many courts purposefully are results-oriented, choosing the law that favors the tort victim. It is beneficial for society at large and the environment for the victim to receive the benefit of the more favorable law in cross-border environmental torts because environmental torts relate to environmental laws. When regulations are too lax and companies face civil tort suits, governments may start to regulate more strictly, thereby benefitting citizens and the environment.