From Domestic to Global? Recent Trends in Environmental Liability from a Multi‐level and Comparative Law Perspective

Abstract

The law of environmental liability has already been the object of several comparative endeavours. This article seeks to bring a different perspective to the debate, by examining selected developments in the field through the lens of the emerging global environmental law scholarship. It brings the comparative method of analysis into a multi‐level context with a view to identifying the emergence of common legal responses to the problem of liability and reparation for environmental harm across different jurisdictions and regulatory levels. The analysis will focus on a ‘novel’ set of environmental liability regimes, which specifically address damage to the environment and to natural resources, as distinct from more traditional categories of damage to property and other individual rights arising as a consequence of environmental pollution. These include: the United States Comprehensive Environmental Response, Compensation, and Liability Act, and the Oil Pollution Act, which constitute a pioneering attempt to envisage a public‐law‐oriented system of liability and restoration for damage to natural resources; the European Union Environmental Liability Directive; and selected, recent international treaty developments. The article argues that, while adopted within different legal orders and regulatory contexts, these environmental liability regimes share common features, which correspond to the ontological aspects of environmental damage and ultimately reflect a common understanding of the environment as a global public good.