Executive Research Summary: International Environmental Criminal Law
For the past few weeks I have been focusing my efforts on two research projects. One dealt with environmental regulation on the international level and is the subject of this post. The other explored a possible relationship between third-party litigation finance and health insurance and will be the subject of a forthcoming post. Each post will offer an abstract or other similar summary with the goal of presenting the core ideas of each ongoing project sufficient to allow for informed comments.
The international law paper, tentatively entitled “Greepeacekeepers,” proposes the development of international environmental criminal law on the basis of tort law’s unsuitable application to environmental harms and an extension of the logic of treating wartime environmental harms under a criminal law model within the law of war:
At least since the Industrial Revolution in the West and through the presently ongoing industrialization of the rest of the world, anthropomorphic environmental degradation has been on the rise. At the simplest level, environmental disputes sound in tort law. If airborne pollutants from a factory smokestack drifted to the farm next door, sickening livestock, the farmer could sue under a trespass theory. Waterborne pollutants flowing downriver from factory to farm would present a similar situation. Today, much of the environmental legal action in the United States deals with a more complex set of personal injury cases called toxic torts in which injured plaintiffs sue manufacturers of the chemical products that caused the injury. Federal and state statutes provide causes of action and civil damages for environmental injuries.
National boundaries need not contain pollution and environmental injuries. Rivers can carry toxins across borders, as can the air that flows freely above them. Products shipped internationally, as well as the boats, airplanes, and trucks that take them there, can facilitate environmental harms. A significant amount of environmental damage also takes place during war. Given the global scope of commerce and other human activities and the interconnections between regional and global ecosystems that operate irrespective of state borders, the environment is an appropriate area for consideration in international law.
Despite the traditional treatment of environmental injuries as matters of tort law, this may not be appropriate or sufficient. For a variety of reasons, environmental injuries and offenses may stretch the adapted civil actions to the breaking point. Some already have suggested that environmental damage should be a consideration within the law of war and treated with strict liability.
The logic that counsels against treating environmental harms as matters of tort law and in favor of strict liability for harms during wartime supports broader treatment of environmental harms under international criminal law.
On treating environmental harms under a tort model: “This traditional arrangement may be too confining in a case of injury from contact with toxic substances…. [Professor Palma] Strand identifies three differences between ordinary tort injuries and toxic substance injuries in this regard” that make it “unlikely that the victim would be able to sue under a standard tort regime”:
First, it often takes years for contaminants to migrate out of a disposal site into places such as water wells where people can be exposed to them. Second, many of the injuries associated with toxic chemicals, most particularly cancer, have long latency periods and do not manifest themselves for years or decades. Finally, even after an individual develops an injury that could have been caused by a toxic contaminant to which he has been exposed, it may be some time before he becomes aware of his exposure to the contaminant and of its potential connection with his injury. This situation is particularly likely when the injury is not caused solely by a specific toxic contaminant or when a person is exposed to a contaminant and develops a disease before the causal link between the contaminant and injury has been scientifically identified.
Palma J. Strand, The Inapplicability of Traditional Tort Analysis to Environmental Risks: The Example of Toxic Waste Pollution Victim Compensation, 35 Stan. L. Rev. 575, 575 (1983). These and other “points of tension between modern environmental harms and traditional tort actions suggest that the latter category is ill suited to redress injuries arising out of the former category….Strand’s conclusion, therefore, is that ‘the fundamental practical differences of toxic waste injuries mandate a fundamentally different theoretical approach to these problems.'” Id. at 587.
Douglas Lackey‘s work in the area of jus post bello— the postwar component of just war theory– lays a logical foundation for an international criminal approach to environmental harms during war and peace. His argument is “that participants in war have an affirmative obligation to restore the environment damaged by their military operations.” Douglas Lackey, “Postwar Environmental Damage: A Study in Jus Post Bellum,” 141, 141 in International Criminal Law and Philosophy, Larry May & Zachary Hoskins, eds. (Cambridge University Press, 2010). Lackey proposes a strict liability approach, with which he identifies three advantages: “1) actors can begin to clean up damage without admitting fault in jus ad bellum or jus in bello; 2) it treats the environment as international law already treats neutral parties; and 3) it recognizes the inherently destructive character of war.” See id. at 144. A criminal model is appropriate, on his view, because one can understand “a crime as ‘an injury to the body politic’ (and that which does not require an identifiable victim),” and “he explains that ‘damage to the environment can be viewed as damage to an international body politic, even absent particular victims, or real victims who fail to bring suit.’ This works, in part, because of special characteristics of the environment: ‘The environment is a delicate web that sustains us all, and a shock at one point vibrates out to all the other points.'” See id. at 147. The result of the application of this criminal model within the law of war, according to Lackey, will be “less destructive wars, because of the restoration requirement, its effect on military leaders calculating prospective losses resulting from war, and the related incentives to develop environmentally friendly weaponry.” See id. at 150-51.
The basic conclusion is that, if tort is not appropriate to handle environmental harms, and if a criminal model works for these harms within the law of war, it is possible to fashion an international criminal law regime for environmental damage.
Constructive comments are welcome below.