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González, José Juan --- "Towards a New Theory of Environmental Liability Without Proof of Damage" [2011] ELECD 650; in Benidickson, Jamie; Boer, Ben; Benjamin, Herman Antonio; Morrow, Karen (eds), "Environmental Law and Sustainability after Rio" (Edward Elgar Publishing, 2011)

Book Title: Environmental Law and Sustainability after Rio

Editor(s): Benidickson, Jamie; Boer, Ben; Benjamin, Herman Antonio; Morrow, Karen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857932242

Section: Chapter 11

Section Title: Towards a New Theory of Environmental Liability Without Proof of Damage

Author(s): González, José Juan

Number of pages: 18

Extract:

11. Towards a new theory of
environmental liability without proof
of damage
José Juan González

1. INTRODUCTION

Since the Rio Declaration on Environment and Development was signed in
1992, many Latin American states have enacted new environmental
protection legislation. 1 In some jurisdictions, such as Brazil and Venezuela,
legislation has specifically addressed harm caused to the environment,
whereas in others, liability and compensation for environmental damage are
included in a wider regime aimed at protecting the environment and natural
resources. However, few of these environmental laws establish rules
governing environmental liability as it is considered here. In many cases, the
legal instruments confuse environmental damage in its own right with
damage caused to natural resources, persons and goods, and consequently
attempt to apply traditional civil liability to damage caused to the
environment in its own right. This approach fails to recognise that
environmental damage is quite different from civil damage and thus civil
liability cannot deal with it effectively. Accordingly, recent developments in
Latin American environmental laws relating to liability could be moving in
the wrong direction.
This chapter analyses recent trends in Latin American environmental
legislation with respect to environmental damage and proposes an alternative
approach to deal with it, namely `liability without proof of damage'.


2. ENVIRONMENTAL DAMAGE IN LATIN AMERICA

The initial reaction of international as well as national legal systems to
environmental damage consisted in applying civil liability, 2 particularly
`objective' or `strict' liability. 3 For instance, in the United States, apart from
the classic ...