Environmental liability under uncertain causation
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Recently, the European Commission has issued the “Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental liability”. The Directive extends liability that usually refers to personal injuries and private property to harm where private property does not exist (e.g. biodiversity and endangered species). In these cases, problems with multiple causation and uncertain causation tend to be even more severe than for cases where solely private property is affected. Nevertheless, the otherwise very ambitious Directive remains silent about how to deal with these problems. We focus on uncertain causation and analyze second best optimal standards of proof in a model where benefits of risky activities are private information, and where the firm’s care level chosen to avoid the damage is only imperfectly observable. We derive three results: first, we characterize the factors determining the second best standards. Second, and conversely to the previous literature, high standards of proof such as proof beyond reasonable doubt can be second best optimal even though they lead to inefficiently low care levels. Third, legislators should leave discretionary power to courts which allows them to choose the standard of proof conditional on factors such as the degree of uncertainty over causation or the information quality about care levels as taken by injurers.
KeywordsEnvironmental liability Uncertainty over causation Standard of proof Threshold probabilities
JEL ClassificationQ50 K13 K32
We are very grateful to an anonymous referee for his valuable suggestions. Moreover, we thank Fernando Gomez, Ariel Porat, Hans-Bernd Schäfer, Urs Schweizer, Kathy Zeiler and participants of the 2006 Meeting of the American Law and Economics Association in Berkeley for helpful comments. G. Muehlheusser gratefully acknowledges financial support from the Swiss National Science Foundation as well as the hospitality of the Management & Strategy Department at Northwestern University’s Kellogg School of Management, where part of the paper was written.
- Balkenborg, D. (2001). How liable should a lender be? The case of judgment-proof firms and environmental risk: Comment. American Economic Review, 91(3), 731–738.Google Scholar
- Barr, C. (1993). Countryside Survey 1990: Main Report. Department of the Environment, London.Google Scholar
- Bartsch, E. (1997). Legal claims for environmental damages under uncertain causality and asymmetric information. Finanzarchiv, 54(1), 68–88.Google Scholar
- Boyd, J., & Ingberman, D. (2003). Fly by night or face the music? Premature dissolution and the desirability of extended liability. American Law and Economics Review, 5(1), 189.Google Scholar
- Clanton, B. (1992). Fleeting security: CERCLA liability for secured creditors. Emory Law Journal, 41, 167–221.Google Scholar
- Craswell, R., & Calfee, J. E. (1986). Deterrence and uncertain legal standards. Journal of Law Economics & Organization, 2(2), 279–303.Google Scholar
- Demougin, D., & Fluet, C. (2005). Preponderance of the evidence. European Economic Review, 50(2), 963–976.Google Scholar
- European Commission. (1995). Study of civil liability systems for remedying environmental damage.Google Scholar
- European Commission. (2004). Questions and Answers Environmental Liability Directive, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/04/78.
- Ewert, R. (1999). Auditor liability and the precision of auditing standards. Journal of Institutional and Theoretical Economics, 155, 181–206.Google Scholar
- Feess, E., Prätorius, G., & Steger, U. (1990). Umwelthaftungsrecht. Wiesbaden: Gabler.Google Scholar
- Kolstad, C. D., Ulen, T. S., & Johnson, G. V. (1990). Ex post liability for harm vs. ex ante safety regulation: Substitutes or complements. American Economic Review, 80(4), 888–901.Google Scholar
- Lewis, T. & Sappington, D. (2001). How liable should a lender be? The case of judgment-proof firms and environmental risk: comment. American Economic Review, 91(3), 724–730.Google Scholar
- Schweizer, U. (2006). Legal damages at uncertain causation. Bonn, Germany: University of Bonn. (mimeo).Google Scholar
- Shavell, S. (2004). Foundations of economic analysis of law. Boston, MA: Harvard University Press.Google Scholar
- Ulph, A., & Valentini, L. (2004). Environmental liability and the capital structure of firms. Southampton, England: Dept of Economics, University of Southampton.Google Scholar
- Van Gerven, W. (Ed.) (2004). IUS commune casebooks for the common law of Europe, http://www.casebooks.eu/index.php.