Who Will Be Nature’s Attorney? Approaches Toward Full Recovery of Environmental Damage

Besides civil and/or criminal penalties prescribed by environmental statutes, what kind of environmental liability should be imposed on the polluter in cases of environmental destruction or pollution? Needless to say, under tort law and nuisance law, if the pollution constitutes a tort against a person or private property, the polluter as a tortfeasor must pay a sum of damages in order to compensate for the injuries suffered by the victims. Obviously, the polluter bears the tort liability because personal rights and property rights have been so clearly defined that the court faces no difficulty recognizing right-holders’ standing to sue the polluter for compensation. However, what about those “environmental goods” to which no one has a clear legal title, but are also damaged by pollution? Who has standing to sue the polluter for recovery of the damage to environmental goods? Shall the polluter be excused from civil liability, merely because environmental goods belong to no one (and, as a result, no one has standing to sue)? Should it be the case, it cannot be said that the polluter is fully responsible for all the loss and damage caused by pollution. The core argument of this thesis is that the polluter shall bear full civil liability for the damage he causes to environmental goods. This thesis attempts to address four main questions: Firstly, why should the polluter compensate for the damage to environmental goods, even if no one has legal title to those environmental goods? Secondly, what approaches to the distribution and management of environmental goods can realize full recovery of environmental damage? Thirdly, which approach(es) does Taiwan adopt, and which approach(es) should be the next stage for Taiwan? Fourthly, what should be the specifics and details of the environmental liability scheme of the next stage? How should it be practiced and operated? Part 2 of this thesis defines “environmental goods” as natural objects, natural resources and their functions – ecosystem services – to which no one has legal title. Part 2 also argues that internalization of external costs and intergenerational equity are two main reasons why it is desirable and necessary to have the polluter make full recovery of damage to environmental goods; both reasons have their legal basis in the Basic Environment Act of Taiwan. Based on existing legal and economic theories and human practices, Part 3 proposes four approaches to the distribution and management of environmental goods that theoretically may help to achieve full recovery of environmental damage. These approaches are: (1) Rights of Nature approach, (2) Privatization of Environmental Goods approach, (3) Right to Environment approach, and (4) Public Trust of Environmental Goods approach. Since the era of environmental legislation and regulation, Public Trust of Environmental Goods approach has become the mainstream and has been widely adopted by countries including Taiwan. However, in Taiwan, Public Trust of Environmental Goods approach has not been practiced perfectly and flawlessly; there still remain some loopholes in Taiwan’s statutory environmental liability regime so that polluters do not always have to pay civil compensation for environmental damage to the trustee of environmental goods – the Government. In order to close these loopholes, after a comparison of four approaches and a brief analysis of their pros and cons, I suggest that Right to Environment approach can complement the mainstream Public Trust of Environmental Goods approach and should be Taiwan’s next (but not final) step toward a full-recovery environmental liability regime. Part 4 goes into the specifics and details of how Right to Environment approach can be practiced and operated. Some critical questions are addressed. Firstly, what should be the content of “right to environment,” if it is to be a meaningful and operable substantive legal right? I argue that the right to environment is a right defined by various environmental legislation and regulations, with an aim to protect people’s interests in the enjoyment of a healthy environment and ecosystem services it provides. When the polluter fails to comply with certain environmental statutes or regulations, such as environmental standards and prohibition of some particular activities, he also commits a tort against people’s right to environment and, as a result, should bear the compensatory liability. Secondly, who is/are the holder(s) of the right to environment? My answer to this is: all the people, including future generations to come! It is because a healthy environment and ecosystem services it provides are what people as a group have, enjoy, and share in common. To be concise, most environmental goods have strong externality and are by nature non-excludable; most of the time, it is costly or even impossible to tell “who” individually enjoys “how much” of “what benefit” from a given environmental good. Thirdly, who has/have standing to sue the polluter for compensation? In light of efficiency of the proceedings, adequate representation, and the logic of collective action, I suggest that only environmental NGOs may have standing and thus can be the plaintiff(s) – on behalf of and for the benefit of all the people as victims whose right to environment was infringed by pollution. Fourthly, with respect to plaintiff’s remedies, the environmental NGO should be entitled to demand that the polluter carry out the removal and remedy of the pollution, rehabilitation of damaged natural environment, and/or restoration of ecosystem’s functions; or to demand that the polluter pay the costs thereof. But in cases where those measures are impossible or infeasible, the polluter should pay monetary damages instead for the loss of environmental goods. Even though many environmental goods are usually not commodities traded in the market and thus may not have their “prices,” the court should nevertheless assess the “value” of those damaged environmental goods when determining the appropriate amount of monetary damages. Lastly, if the plaintiff environmental NGO wins the lawsuit and damages are awarded, how should the monetary awards be allocated and used? I suggest that, instead of distributing the money, an “Environmental Goods Fund” can be established with those monetary awards. The money from the Fund should be appropriated exclusively for the purposes of removal and remedy of pollutions, rehabilitation of damaged natural environment, restoration of ecosystem’s functions, and other purposes related to environmental protection and sustainable development. My suggestion is based not only on the fact that most environmental goods have strong externality and are shared in common by the general public, but also on the need of achieving intergenerational equity. Using the monetary compensation in this way, the environmental interests of the general public and even of future generations can be served well and fairly. It must be noted that the arguments of this thesis can be achieved without a fundamental paradigm shift of Taiwan’s legal system, and can find their legal basis in existing laws. All they require are just some slight changes to judges’ way of legal thinking and how judges interpret some ordinary legal concepts such as “injury” and “standing,” plus, of course, some degree of environmental consciousness.